# Ashok Kumar Kesarwani v. 6th Additional District Judge Court No. 5, Allahabad & Ors

- **Citation:** (2022) 5 ILRA 1611
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-07
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-kesarwani-v-6th-additional-district-judge-court-no-5-allahabad-ors-48456
- **Pages:** 9

## Headnote

Sri
Prem
Sagar
Verma,
Sri
Arvind
Srivastava, Sri Kunal Shah, Sri Madan
Mohan
1612 INDIAN LAW REPORTS ALLAHABAD SERIES
A. U.P. Act No. 13 of 1972- Section
21(1)(a) - Release of a part of residential
accommodation for business purpose. In view of
bar in clause (ii) of third proviso to Section
21(1)(a) of the Act, this plea never taken in the
written St.ment nor raised before the appellate
court and hence cannot be argued for the first
tie before the High Court.

B. The disability under the aforesaid provision
would be attracted if the tenant-petitioner or
any member of his family has acquired another
residential building in the same city, municipality
etc.

Petition dismissed. (E-12)

List of Cases cited:-

## Text

5 All. Ashok Kumar Kesarwani Vs. 6th Additional District Judge Court No. 5, Allahabad & Ors. 1611
writ petitioner to evade tax and rather,
the goods in question could not be taken
to the destination within time for the
reasons beyond the control of the writ
petitioner. When the undeniable facts,
including the traffic blockage due to
agitation, are taken into consideration, the
State alone remains responsible for not
providing smooth passage of traffic.

Having said so; having found no
question of law being involved; and having
found this petition itself being rather misconceived , we are constrained to enhance
the amount of costs imposed in this matter
by the High Court.

The High Court has awarded
costs to the writ petitioner in the sum of
Rs. 10,000/- (Rupees Ten Thousand) in
relation to tax and penalty of Rs.69,000/-
(Rupees Sixty-nine Thousand) that was
sought to be imposed by the petitioner
No.2. In the given circumstances, a
further sum of Rs. 59,000/- (Rupees
Fifty-nine Thousand) is imposed on the
petitioners toward costs, which shall be
payable to the writ petitioner within four
weeks from today. This would be over
and above the sum of Rs. 10,000/-
(Rupees Ten Thousand) already awarded
by the High Court.

Having
regard
to
the
circumstances, we also make it clear that
the State would be entitled to recover the
amount of costs, after making payment
to the writ petitioner, directly from the
person/s responsible for this entirely
unnecessary litigation.

This petition stands dismissed,
subject to the requirements foregoing.

Compliance to be reported by the
petitioners."

(emphasis supplied by us)

14. Applying the law laid down by
Hon'ble Supreme Court in the case of
Satyam Shivam Papers Pvt. Ltd. (supra) on
the facts of the present case, the writ
petition deserves to be allowed with cost.

15. For all the reasons aforestated, the
impugned
detention
order
dated
07.03.2022,
the
release
order
dated
13.03.2022 and notices dated 22.03.2022
and 28.03.2022, are hereby quashed being
totally arbitrary and illegal. The goods and
vehicle
in
question
seized
by
the
respondents are directed to be released
forthwith.

16. The writ petition is, accordingly,
allowed with cost of Rs.50,000/- to each
of the petitioners, i.e. total Rs.1,00,000/-
which the respondents shall pay the
petitioners within four weeks from today.
----------
(2022)05ILR A1611
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matters U/A 227 No. 872 of 2019 (Civil)

Ashok Kumar Kesarwani ...Petitioner
Versus
6th Additional District Judge Court No. 5,
Allahabad & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vishal Khandelwal, Sri Prakash Chandra
Gupta

Counsel for the Respondents:
Sri
Prem
Sagar
Verma,
Sri
Arvind
Srivastava, Sri Kunal Shah, Sri Madan
Mohan
1612 INDIAN LAW REPORTS ALLAHABAD SERIES
A. U.P. Act No. 13 of 1972- Section
21(1)(a) - Release of a part of residential
accommodation for business purpose. In view of
bar in clause (ii) of third proviso to Section
21(1)(a) of the Act, this plea never taken in the
written St.ment nor raised before the appellate
court and hence cannot be argued for the first
tie before the High Court.

B. The disability under the aforesaid provision
would be attracted if the tenant-petitioner or
any member of his family has acquired another
residential building in the same city, municipality
etc.

Petition dismissed. (E-12)

List of Cases cited:-

1. Deepak Tandon & anr. Vs Rajesh Kumar
Gupta (2019)5 SCC 537

2. Shiv Singh Chak Vs Baby Jain (2008)5 SCC
486

3. Laxmi Kant Bhatnagar Vs District Judge,
Muzaffarnagar & anr. 2012 SCC Online All 3798
(Delivered by Hon'ble J.J. Munir, J.)

1. This petition is directed against an
order of Mr. Ramesh Chandra, the 8th
Additional District Judge, Court No.5,
Allahabad passed in Rent Control Appeal
No.10 of 2018, dismissing the said appeal
and affirming the order of the Prescribed
Authority/ Additional Civil Judge (Senior
Division),
Court
No.14,
Allahabad,
allowing the landlord's application for
release under Section 21(1)(a) of The Uttar
Pradesh Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 (U.P.
Act No. 13 of 1972)1.

2. An application for release under
Section 21(1)(a) of the Act was made by
Deepak Tandon and Shekhar Tandon, both
sons of the late Manmohan Tandon,
seeking release of a part of residential
accommodation
bearing
premises
No
18/15, Hastings Road, 1/5 Nyay Marg,
Tandon
Quarters,
Allahabad
(now
Prayagraj), as detailed at the foot of the
application. The aforesaid accommodation,
that shall hereinafter be referred to as the
property in dispute, is in the tenancy
occupation of Ashok Kumar Kesarwani.
Kesarwani is a tenant in the property in
dispute at a monthly rent of Rs.520/-,
besides water tax and house tax. The
property in dispute was let out to
Kesarwani's father, the late Kundan Lal
Kesarwani for residential purposes. Kundan
Lal Kesarwani lived in the property in
dispute during his lifetime and left behind
him Ashok Kumar Kesarwani, who is the
opposite party to the application for release
and the petitioner here, besides two other
sons and daughters. The two other brothers
of Ashok Kumar Kesarwani, who shall
hereinafter be referred to as 'the tenantpetitioner', moved away from the property
in dispute and settled elsewhere in
Allahabad. The tenant-petitioner's sisters
got married and have settled down in their
matrimonial homes. The late Kundan Lal
Kesarwani passed away some 20 years
prior to institution of proceedings for
release. The tenant-petitioner has inherited
the tenancy and stays in the property in
dispute along with his family. The tenantpetitioner manages a General Merchant and
Grocers Shop located 25 metres away from
the property in dispute. The tenantpetitioner's shop aforesaid is housed in the
premises of one Smt. Chanda Rani Tandon,
an aunt of the the two landlords, Deepak
Tandon and Shekhar Tandon. Pending
proceedings before the Courts below,
Shekhar Tandon has passed away and is
represented on record before this Court by
his two sons, Ayush Tandon and Utkarsh
Tandon, besides his widow Smt. Archana
Tandon. Deepak Tandon is arrayed as
5 All. Ashok Kumar Kesarwani Vs. 6th Additional District Judge Court No. 5, Allahabad & Ors. 1613
respondent no.3 to the petition. The heirs of
Shekhar Tandon and Deepak Tandon shall
hereinafter be referred to as 'the landlordrespondents' in case of a collective
reference;
in
case
of
an
individual
reference, the landlord concerned shall be
mentioned by name.

3. It is the landlord-respondents'
further case that the tenant-petitioner has
built a house of his own bearing Premises
No. 62/30/6 B, Nawab Yusuf Road,
Allahabad and has moved to the aforesaid
house of his after vacating the property in
dispute. For all practical purposes, the
tenant-petitioner has moved out of the
property in dispute and holds it in
namesake, as it carries meagre rent. The
tenant-petitioner has placed his lock on the
property in dispute in order to retain
possession thereof. It was the case of
Deepak Tandon and Shekhar Tandon that
their mother is very old and stays with
them at their residential premises located at
47/33, Lukarganj, Allahabad. The distance
between
the
landlord-respondents'
residence and that of their business
premises is about 3 kilometers. Deepak
Tandon owns a firm by the name of
Shubham Fluent Controls and Dynamics,
whereas Shekhar Tandon owns a business
by the name of Tele Links. Both the
businesses are housed in parts of premises
owned by Smt. Chanda Rani Tandon, an
aunt of Deepak Tandon and Shekhar
Tandon.

4. The landlord-respondents are doing
business in rented accommodation that is
located at a distance of 100 metres for
Deepak Tandon and 25 metres for Shekhar
Tandon from the property in dispute.
Deepak Tandon and Shekhar Tandon have
to stay in their business premises in
connection with their business from 9:00
a.m. to 9:00 p.m. Both of them are turning
old and to spend 12 hours and more at work
causes exertion and tension. Deepak
Tandon is a heart patient and has been
advised by Doctors to eschew excessive
labour and tension. The passage between
the business premises of Deepak Tandon
and Shekhar Tandon and their house
involves negotiating the Railway Overbridge, which is plagued by extraordinary
traffic congestion leading the two brothers
to
face
extreme
inconvenience
and
difficulties.

5. It is the landlord-respondents' case
that Deepak Tandon has filed P.A. Case No.
20 of 2011 against Rajesh Kumar Gupta,
who is in occupation of accommodation
abutting
the
tenant-petitioner.
That
accommodation is sought release of by
Deepak Tandon for business's purposes.
The said relief has been granted by the
Prescribed Authority and the Appellate
Authority, but the case was pending before
this Court when the present release
application was moved. Likewise, another
P.A. Case was filed against a different
tenant by Deepak Tandon and Shekhar
Tandon, that is to say, Rajendra Kumar
Abbi, who was in occupation of a shop,
also sought release of for business
purposes.

6. It is the pleaded case of the
landlord-respondents
that
they
made
another release application being P.A. Case
No. 6 of 13, Deepak Tandon and another
vs. Smt. Saroj Anand, seeking release of
part of the house in her possession on the
ground of personal need for residential
occupation
for
themselves
and
their
families. It is the landlord-respondents'
further case that in future they desire to
have a house that was next to their office
and business premises. For the present, the
1614 INDIAN LAW REPORTS ALLAHABAD SERIES
two landlords, Deepak Tandon and Shekhar
Tandon said that they bona fide required
the property in dispute for the purpose of
lunch and rest during the afternoon, as it
was close by to their business premises. If
available, it would obviate obviate the
necessity for the two brothers negotiating
the traffic jam to make it to their residence
located at Lukerganj everyday for lunch
and rest.

7. It is the landlord-respondents'
further case that the tenant-petitioner's need
for the property in dispute has been effaced
because he has acquired in the same city
area at the distance of a mere 150 metres
from the last mentioned property, a house
of his own, much larger in size, that is a
three
storied
structure.
The
tenantpetitioner resides in the aforesaid house of
his along with his family members.

8. It is specifically pleaded that the
requirement of the two landlords, Deepak
Tandon and Shekhar Tandon is bona fide
for the property.

9. The tenant-petitioner filed a written
statement and also an additional written
statement, wherein he has not disputed his
status as a tenant in the property in dispute,
whereof the landlord-respondents have
been acknowledged to be the landlords. It
is the tenant-petitioner's case that the
property in dispute has been in the tenancy
occupation of the family since the past 50
years. His father was originally the tenant
and used the said property as a godown to
store his wares. After the death of the
tenant-petitioner's father, he took up
residence in the property in dispute and at
the same time, utilized it as a godown. The
tenant-petitioner denied the fact that he
utilizes the property in dispute exclusively
for the purpose of his residence, as asserted
by the landlord-respondents. It was further
pleaded at the instance of the landlordrespondents that the tenant-petitioner, from
time to time, increased the monthly rent,
which, in the current time, is a sum of Rs.
520/- per mensem. It includes water tax and
sewer tax. The landlord-respondents, in the
month of November, 2015 demanded of the
tenant-petitioner that the rent may be
enhanced to a sum of Rs. 3,000/-, which the
latter declined. There is a case also pleaded
about the fact that initially, the landlordrespondents accepted the rent, but later on
refused, on account of which, the tenantpetitioner is regularly depositing the same
under Section 30(1) of the Act. It was then
pleaded that some other tenants have been
evicted
and
there
is
available
accommodation
with
the
landlordrespondents to satisfy their claimed bona
fide need, but deliberately the landlordrespondents have suppressed the facts and
made the present release application mala
fide.

10. There is also a specific plea raised
in paragraph no. 25 of the written
statement, setting out names of various
tenants who are continuing to occupy
different parts of the landlord-respondents'
premises, but no proceedings for eviction
have been taken against them. The tenantpetitioner, on the basis of singling him out
for eviction proceedings has raised a plea
of mala fides against the landlordrespondents. In the additional written
statement, the tenant-petitioner has not
denied the fact that he has got constructed a
house of his own bearing Premises No.
62/30/6B, Nawab Yusuf Road, Allahabad,
but said that his house is very small,
admeasuring 15' x 30'. The tenantpetitioner goes to the said house to retire
for the night. It is then pleaded in the
additional written statement that in the
5 All. Ashok Kumar Kesarwani Vs. 6th Additional District Judge Court No. 5, Allahabad & Ors. 1615
afternoon hours, he takes time off from his
shop and eats his lunch, utilizing the property
in dispute. The tenant-petitioner also says that
he is afflicted by kidney disease, that causes
him to frequently need the urinal. He utilizes
the property in dispute that was located at the
distance of a three quarters of a kilometer from
his shop for the twin purpose of eating his
lunch and answering the frequent call of
nature, a fallout of his diseased kidneys. In
addition, the property in dispute is used as a
godown for his shop, where he can
conveniently and quickly ensure supplies to
his shop. It is also the tenant-petitioner's case
that pending the proceedings for release, the
landlord-respondents
have
got
vacated
adjoining shops from the other tenants, Rajesh
Kumar Gupta, Surendra Kumar, Suresh
Khanna, Rajendra Kumar Abbi, all of which
has led the landlord-respondents to acquire in
a vacant state much accommodation, that they
can utilize for the purpose of satisfaction of
their claimed bona fide need. The shops
vacated by the above named persons are part
of the same premises as the property in dispute
and adjoining it. It is broadly on the aforesaid
pleas that the tenant-petitioner has resisted the
release application.

11. The parties filed their affidavits and
some on behalf of the witnesses in support of
their
respective
cases. The
Prescribed
Authority vide judgment and award dated
30.11.2017 allowed the release application.
The tenant-petitioner filed Rent Appeal No.
10 of 2018 before the District Judge of
Allahabad.
The
appeal
came
up
for
determination before the Additional District
Judge, Court
No. 5 Allahabad,
who
proceeded to hear and dismiss the appeal vide
the judgment impugned dated 07.01.2019.

12. Dissatisfied, the tenant-petitioner
has filed the present petition under Article
227 of the Constitution.

13. Parties have exchanged affidavits.

14. Heard Mr. Vishal Khandelwal,
learned Counsel for the tenant-petitioner
and Mr. Kunal Shah, learned Counsel
appearing on behalf of respondent nos. 3 to
6.

15. It has been argued by Mr.
Khandelwal that the property in dispute
being one that is a residential building, it
cannot be released for a business purpose,
because what the landlord-respondents
have said in their application normally
constitutes a business purpose. He points
out that the application is not maintainable,
in view of Clause (ii) of the third proviso to
Section 21(1) of the Act. It is argued that
the landlord-respondents have pleaded a
case that they need the property in dispute
so
that
they
can
eat
their
lunch
conveniently, as it is situate close to their
business premises, sparing them the trouble
of going home everyday, that is located
three kilometers away from their place of
work. This purpose the learned Counsel for
the appellant submits is a business purpose,
and not residential purpose.

16. This Court is afraid that the
aforesaid objection is not very wellfounded, because the plea that the property
in dispute is a residential accommodation,
attracting the bar carried in Clause (ii) of
the third proviso to Section 21(1)(a) of the
Act, was never taken in the written
statement filed before the Prescribed
Authority. It was also not argued before the
Appellate Authority. It is before this Court
that the plea has been urged for the first
time. Learned Counsel for the tenantpetitioner says that the position is admitted
that the property in dispute is a residential
accommodation, and therefore, no pleading
to that effect is required. He has urged that
1616 INDIAN LAW REPORTS ALLAHABAD SERIES
admission is the best form of proof and
here, this position it admitted that the
property
in
dispute
is
a
residential
accommodation. This submission too is not
borne out by the facts on record. In
paragraph no. 21 of the written statement
filed by the tenant-petitioner, it has been
averred that the property in dispute was
used since the time of their father for the
purpose of his godown and also residence
and until date, the tenant-petitioner utilizes
the said property as a godown and also for
the purpose of residence. However, a
perusal of paragraph no. 5 of the additional
written statement shows that the tenantpetitioner utilizes the property in dispute as
a godown in order to facilitate his
business and the only other use to which
it is put is that the tenant-petitioner eats
his lunch there and uses the washroom.
This clearly would not show that the
property in dispute was let out for a
residential purpose. Rather, the totality of
the pleadings indicate that since the time
of his father, the property in dispute was
used as a godown. Quite apart, how much
of it was used for residence and what part
as a godown would be a matter which
would have been gone into from the point
of view of maintainability, if that plea
had specifically been raised before the
Authorities below. The plea was not
specifically taken before the Authorities
below, on account of which, that issue
with reference to the evidence was never
examined. The same issue arose between
the petitioner and another tenant, Rajesh
Kumar Gupta, against whom, release was
ordered by the Prescribed Authority and
the Appellate Authority. This Court,
however, in a writ petition, set aside the
order on the ground that the tenancy was
essentially for a residential purpose,
where three rooms were utilized for
residence and one for a shop, whereas the
landlord-respondents had sought release
for commercial purpose, attracting the bar
under the third proviso to Section 21 of
the Act.

17. The aforesaid view of this Court
did not find favour with their Lordships
of the Supreme Court in Deepak Tandon
and another v. Rajesh Kumar Gupta2
where it was held :

15. In our considered opinion,
the High Court committed jurisdictional
error in setting aside the concurrent
findings of the two courts below and
thereby erred in allowing the respondent's
writ appeal and dismissing the appellants'
application under Section 21(1)(a) of the
1972 Act as not maintainable. This we
say for the following reasons:

15.1. First, it is not in dispute that
the respondent (opposite party) had not
raised the plea of maintainability of the
appellants'
application
under
Section
21(1)(a) of the 1972 Act in his written
statement before the Prescribed Authority.

15.2.
Second,
since
the
respondent failed to raise the plea of
maintainability, the Prescribed Authority
rightly did not decide this question either
way.

15.3. Third, the respondent again
did not raise the plea of maintainability
before the first appellate court in his appeal
and, therefore, the first appellate court was
also right in not deciding this question
either way.

15.4. Fourth, it is a settled law
that if the plea is not taken in the pleadings
by the parties and no issue on such plea
was, therefore, framed and no finding was
recorded either way by the trial court or the
first appellate court, such plea cannot be
allowed to be raised by the party for the
first time in third court whether in appeal,
5 All. Ashok Kumar Kesarwani Vs. 6th Additional District Judge Court No. 5, Allahabad & Ors. 1617
revision or writ, as the case may be, for
want of any factual foundation and finding.

15.5. Fifth, it is more so when
such plea is founded on factual pleadings
and requires evidence to prove i.e. it is a
mixed question of law and fact and not
pure jurisdictional legal issue requiring no
facts to probe.

15.6. Sixth, the question as to
whether the tenancy is solely for residential
purpose or for commercial purpose or for
composite purpose i.e. for both residential
and commercial purpose, is not a pure
question of law but is a question of fact,
therefore, this question is required to be
first pleaded and then proved by adducing
evidence. It is for this reason, such question
could not have been decided by the High
Court for the first time in third round of
litigation in its writ jurisdiction simply by
referring to some portions of the pleadings.
In any case and without going into much
detail, we are of the view that if the tenancy
is for composite purpose because some
portion of tenanted premises was being
used for residence and some portion for
commercial purpose i.e. residential and
commercial, then the landlord will have a
right to seek the tenant's eviction from the
tenanted premises for his residential need
or commercial need, as the case may be.

15.7. Seventh, the High Court
exceeded its jurisdiction in interfering with
the concurrent findings of fact of the two
courts below while allowing the writ appeal
entirely
on
the
new
ground
of
maintainability of the application without
examining the legality and correctness of
the concurrent findings of the two courts
below, which was impugned in the writ
appeal.

15.8. Eighth, the High Court
should have seen that the concurrent
findings of facts of the two courts below
were binding on the writ court because
these findings were based on appreciation
of evidence and, therefore, did not call for
any interference in the writ jurisdiction.

18. This is precisely the position here
on facts and the state of pleadings. In view
of holding of the Supreme Court in Deepak
Tandon (supra), the point urged by Mr.
Khandelwal does not hold substance. So far
as the question of bona fide need and
comparative hardship is concerned, both
the Authorities below have concurrently
answered it against the tenant-petitioner
and the inference drawn by both Courts
from the evidence on record is, in no way,
perverse or based on irrelevant material.
The most important fact that tips the scales
heavily in favour of the tenant-petitioner on
both the counts of bona fide need and
comparative hardship is that it is admitted
to
the
tenant-petitioner
that
he has
acquired/got constructed a house within the
same
city,
situate
at
Premises
No.
62/30/6B, Nawab Yusuf Road, Allahabad.
The
tenant-petitioner
has,
no
doubt,
attempted to explain the possession of a
residential accommodation on the ground
that the house constructed by him is very
small, as he says in paragraph no. 5 of his
Additional W.S., admeasuring 15' x 30' that
he utilizes to retire at night alone, but that
explanation is in apology for a plenary
admission of the fact that the tenantpetitioner has a residential accommodation
available to him in the same city. Rather,
the tenant-petitioner's further case that he
utilizes the property in dispute to eat his
lunch and answer the call of nature
excludes the case that he utilizes the
property in dispute for residential purposes
at all. These facts have figured in the
pleadings of the tenant-petitioner, let alone
the evidence. The findings that the
Authorities below have given on its basis
cannot, therefore, be faulted at all.
1618 INDIAN LAW REPORTS ALLAHABAD SERIES

19. It is, thus, clear that the property
in dispute is not at all utilized as a
residential
premises
by
the
tenantpetitioner, but as a godown and a place to
facilitate his business located at a short
distance. It is the tenant-petitioner's case
that he utilizes the property in dispute to eat
his lunch and use the washroom, accessing
it conveniently from his shop located close
by. The landlord-respondents also need the
property in dispute for a similar purpose,
that is to say, as an adjunct or facility to
their business, which they can utilize
during the day to eat their lunch, instead of
going to their faraway located home. Once
both the tenant-petitioner and the landlordrespondents seek to utilize the property in
dispute for a similar purpose and the
landlord-respondents have shown that they
need it to carry on their business with ease,
the bona fide need of the landlordrespondents must be accepted. Likewise,
comparative hardship would also have to
be held in favour of the landlordrespondents, as both the tenant-petitioner
and the landlord-respondents need the
property in dispute for a similar purpose.
Where the competing need is similar and
evenly balanced, comparative hardship has
to be held in favour of the landlordrespondents.

20. The Appellate Court has taken
note particularly of the fact that in
paragraph no. 13 of the affidavit, Paper No.
24ka, the tenant-petitioner has admitted the
fact that he has recently got constructed the
house bearing Premises No. 62/30/6B,
Nawab Yusuf Road, Allahabad and has, on
that basis, opined that the tenant-petitioner
has no right whatsoever to object to the
release of the property in dispute. This line
of reasoning is an alternate to that this
Court has hitherto considered. It proceeds
on the tenant-petitioner's assertion that the
property in dispute is residential or that was
the purpose for which it was let out. Even if
this case of the tenant-petitioner were to be
accepted, Explanation (i) to Section 21(1)
of the Act would come into play and
disable the tenant-petitioner from objecting
to the application for release. The disability
under the aforesaid provision would be
attracted if the tenant-petitioner or any
member of his family has acquired another
residential building in the same city,
municipality
etc.
In
this
connection,
reference may be made to the decision of
the Supreme Court in Shiv Singh Chak v.
Baby Jain3, where it has been held :

8. Explanation (i) to Section
21(1) of the Act provides that where a
proceeding for eviction is initiated by the
landlord in regard to a residential building
under Section 21(1) of the Act and where
the tenant or any member of his family has
acquired a vacant residential building in the
same
city/town/area,
the
prescribed
authority shall not entertain any objection
of the tenant against the application for
eviction. In effect this means that where the
landlord avers and proves in an eviction
proceedings
relating
to
a
residential
building under Section 21(1) of the Act,
that the tenant has acquired vacant
possession of a residential building in the
same
city/town/area,
it
will
not
be
permissible for the tenant to challenge the
bona fides of the landlord or put forth any
hardship as a defence. But the said
Explanation (i) to Section 21(1) does not
apply to non-residential buildings. The
Explanation to Section 21(1) starts with the
words "In the case of a residential
building".
As
the
Explanation
is
inapplicable to a non-residential building,
the bar contained in Clause (i) of the
Explanation will not operate where the
eviction petition is in regard to a non-
5 All. Shivpal Singh & Ors. Vs. Dafedar Singh & Ors.
1619
residential building. But the fact that the
tenant has acquired a suitable alternative
non-residential building may, however, be
urged as a good ground to hold that no
hardship will be caused to the tenant if he is
evicted from the premises let out to him.

21. To the same effect is the decision
of this Court in Laxmi Kant Bhatnagar v.
District
Judge,
Muzaffarnagar
and
another4, where it was observed :

8. The legislative mandate is very
clear. Once a tenant has himself got a
residential accommodation, or through any
member of his family who has been
normally residing with him or is wholly
dependent on him, in a vacant state, no
objection against release application under
section 21(1)(a) of Act, 1972 shall be
entertained from such tenant.

9. The sale-deed is on record.
There is nothing to show that accommodation
was not vacant at the time of execution of
sale-deed between petitioner-tenant's wife
and erstwhile landlord of said building. No
other material has been placed to show that
the building when acquired was not vacant.
The acquirement of building by petitioner's
wife is not in dispute. It is also not in dispute
that Explanation (i) would be attracted in the
present case. Even during course of argument
Sri A.K. Mehrotra has not controverted that
the said provision i.e., Explanation (i) to
section 21(1)(a) shall be attracted in the
present case.

10.
That
being
so,
against
landlord's
application
for
release
of
residential accommodation, no objection can
be entertained from the tenant. It means that
the tenant loses any locus standi to object
prayer for release made by the landlord.

11. That being so, it results in
extinguishing any right to contest prayer of
landlord for release of residential building
which embraces within itself right to
pursue
or
contest
in
subsequent
proceedings also.

22. Thus, viewed from any angle and
whichever way it is considered, no case for
interference with the impugned order is
made out.

23. In the result, this petition fails and
is dismissed. There shall be no order as to
costs.
----------
(2022)05ILR A1619
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matters U/A 227 No. 7532 of 2021 (Civil)

Shivpal Singh & Ors. ...Petitioners
Versus
Dafedar Singh & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satish Kumar Pandey, Sri Anil Kumar

Counsel for the Respondents:
Sri Yogendra Kumar Srivastava

Civil Law - Code of Civil Procedure, 1908
- Transfer Application u/S 24 - Petition
u/A 227--- Power of the District Judge and
High Court u/S 24 C.P.C. is concurrent and,
therefore, once the application u/S 24 moved
before District Judge has been dismissed the
aggrieved party can approach u/S 24 of the
CPC and not by way of petition u/A 227 of
Constitution as held in Smt. Sunita Devi v
Ram Kripal & anr. 2014 SCC Online Allahabad
13486 and Indian Oil Corp. Ltd. Vs Ram
Swaroop Bajaj 2016 SCC Online Allahabad
2743

Petition referred to larger bench. (E-12)