# Babulal Chawdhary v. Prescribed Auth./Addl. Civil Judge & Ors

- **Citation:** (2022) 11 ILRA 859
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-22
- **Case number:** Writ-A No. 1000145 of 2009
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babulal-chawdhary-v-prescribed-auth-addl-civil-judge-ors-47899
- **Pages:** 9

## Headnote

Civil Law - Urban Buildings ( Regulation of
Letting, Rent and Eviction) Act, 1972 -
Application was filed u/s 21 of the Act-for
release of two shops under the tenancy of the
Petitioner-civil suit also filed -for permanent
injunction-stay order granted-despite interim
order-both shops were demolished-Application
u/s 29-A was filed by the Petitioner for direction
to the landlord/respondent to reconstruct the
shops or to permit the Petitioner to reconstructapplication rejected-Section 29-A -does not
provide for filing of an application for re-building
of a demolished building under tenancy -
application not maintainable-no illegality in
impugned order.

W.P. dismissed . (E-9)
List of Cases cited:

## Text

11 All. Babulal Chawdhary Vs. Prescribed Auth./Addl. Civil Judge & Ors.
859
have retired or "were in employment of
Central or State Government".

23. The benefit of employment on
compassionate ground is available to a
limited section of persons who are
specifically included in the Rule of 1974.
The purpose of grant of appointment has
been clearly culled by various judgments of
the Supreme Court and such appointment is
provided to prevent destitution. Though the
mother of the petitioner working in
government service died in harness, but her
husband was also on in government service
in the Labour Department and had retired
prior to death of his wife. After the
retirement he is receiving pension.

24. This court is of the considered
view that if the spouse of the deceased
government servant is receiving pension
then it cannot be said that the family would
fall into destitution as the pensioner father
can very well take care of the petitioner,
and hence he cannot claim benefit of
compassionate appointment under Rule of
1974, and his claim would be deemed to be
included in Rule 5 of Rule of 1974

25. In light of the above and specially
considering the fact that a specific
provisions under said rules, dis-entitles the
petitioner for appointment under Rules,
1974, no such direction sought by the
petitioner can be granted.

26. In the aforesaid circumstances,
this Court is of the consider view that in
Rule 5 of Rules, 1974 even if one of the
spouse was in previous employment of the
State government , then the legal heir
would not be eligible for grant of
compassionate
appointment
and
consequently this Court does not find any
infirmity in the impugned order dated order
23.08.2022 and consequently the writ
petition bereft of merits and is accordingly
dismissed.
----------
(2022) 11 ILRA 859
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.11.2022

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-A No. 1000145 of 2009

Babulal Chawdhary ...Petitioner
Versus
Prescribed Auth./Addl. Civil Judge & Ors.
 ...Respondents

Counsel for the Petitioners:
Madhur Kant Srivastava

Counsel for the Respondents:
C.S.C, Bireshwar Nath

Civil Law - Urban Buildings ( Regulation of
Letting, Rent and Eviction) Act, 1972 -
Application was filed u/s 21 of the Act-for
release of two shops under the tenancy of the
Petitioner-civil suit also filed -for permanent
injunction-stay order granted-despite interim
order-both shops were demolished-Application
u/s 29-A was filed by the Petitioner for direction
to the landlord/respondent to reconstruct the
shops or to permit the Petitioner to reconstructapplication rejected-Section 29-A -does not
provide for filing of an application for re-building
of a demolished building under tenancy -
application not maintainable-no illegality in
impugned order.

W.P. dismissed . (E-9)
List of Cases cited:

1. M.S. Grewal & anr. Vs Deep Chand Sood &
ors.-AIR 2001 SC 3660

2. The St.of Punjab & anr. Vs Shamlal Murari &
anr.-AIR 1976 SC 1177
860 INDIAN LAW REPORTS ALLAHABAD SERIES
3. M/s Shaha Ratansi Khimji and sons Vs
Proposed Kumbhar sons Hotel P. Ltd. & ors. -
AIR 2014 SC 2895.

4. Trust Jama Masjid Waqf No.31 Vs Lakshmi
Talkies & ors. - (2010) 9 SCC 78
(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Sri Madhur Kant Srivastava,
learned counsel for the petitioner, and Sri
Bireshwar Nath, learned counsel, assisted
by Sri R.K. Singh Raj, learned counsel for
respondents no.2 and 3.

2. Instant petition has been filed
praying for the following main reliefs:-

"(i) Issue a writ, order or direction in
the nature of certiorary quashing the order
passed by opposite party no.1 dated
23.09.2009 contained in Annexure No.1 in
P.A. Case No.1/2004 "Buddhi Lal and
another vs. Babulal Chawdhary", rejecting
the application moved by the petitioner
under Section 29 of U.P. Act 13 of 1972 of
the writ petition.

(ii) Issue a writ, order or direction in
the nature of mandamus commanding the
opposite parties to allow reconstruction of
the
tenement
in
dispute
within
the
stipulated and reasonable time granted by
this Hon'ble Court."

3. The case set forth by the petitioner
is that in the year 2004 an application under
Section 21 of the Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (hereinafter referred to
as
the
'Act,
1972')
was
filed
by
respondent/landlord before the Prescribed
Authority praying for release of two shops
under tenancy of the petitioner. The said
application was registered as P.A. No.1 of
2004. Written statement was filed by the
petitioner. It is contended that a civil suit
was also filed by the petitioner for
permanent injunction in which a stay order
was granted on 01.03.2004, a copy of
which is Annexure-4 to the petition.
However, despite existence of the said
interim
order
both
the
shops
were
demolished by the respondent/landlord.
The petitioner claims to have lodged a first
information report on 01.08.2005 against
the respondent/landlord but in a petition
filed by the landlord, a stay order was
granted by this Court whereby the arrest of
the
respondent/landlord
was
stayed.
Subsequently a charge sheet was filed in
the said criminal case in which again the
landlord/respondent
is
said
to
have
approached this Court in which certain
orders were passed.

4. Be that as it may, an application
was filed by the petitioner under Section
29-A of the Act, 1972 on 06.08.2005, a
copy of which is Annexure-6 to the
petition. The said application was filed in
the pending application under Section 21 of
the
Act,
1972
filed
by
the
respondent/landlord namely case P.A. No.1
of 2004. The prayer in the said application
was for a direction to be issued to the
landlord/respondent
to
reconstruct
the
shops under tenancy of the tenant or to
permit the tenant to reconstruct the shops.
The landlord filed his objections to the said
application and the learned court below
vide impugned order dated 23.09.2009, a
copy of which is Annexure-1 to the
petition, rejected the application. Being
aggrieved, instant petition has been filed.

5. The contention of learned counsel for
the petitioner is that when the aforesaid case
under Section 21 of the Act, 1972 was filed
and there was a stay order that had been
granted by the Civil Court in favour of the
petitioner in the suit for permanent injunction
11 All. Babulal Chawdhary Vs. Prescribed Auth./Addl. Civil Judge & Ors.
861
filed by him as such in order to frustrate the
said stay order the shops were got demolished
by the respondent/landlord. As the said shops
had been demolished during the pendency of
the
aforesaid
application
before
the
Prescribed Authority as such an application
under Section 29-A of the Act, 1972 was
filed. He contends that once a mischief was
sought
to
be
created
by
the
landlord/respondent in the matter inasmuch
as the shops in dispute were themselves
demolished by the landlord/respondent for
which a first information report was lodged
as such it was in the fitness of things that the
Prescribed Authority should have allowed the
said application and should have either
directed the landlord/respondent herein to
reconstruct the shops or in the alternative to
have permitted the petitioner to reconstruct
the said shops. He contends that the said
application has been rejected by the
Prescribed Authority vide impugned order
dated 23.09.2009 primarily on two grounds
namely (a) in the Commissioner's report
which has been called for it emerges that the
shops were demolished on account of being
an encroachment, and (b) that an application
under Section 29 of the Act, 1972 should
have been filed separately.

6. So far as ground (a) is concerned, it
is
contended
that
nowhere
in
the
Commissioner's report, a copy of which has
been filed as Annexure -12 to the petition, it
comes out that the shops were demolished on
account of being an encroachment. So far as
ground (b) is concerned, it is contended that
there is no provision for filing of a separate
application, as such, the court below has
patently
erred
in
rejecting
the
said
application.

7. Learned counsel for the petitioner
has placed reliance on Section 29-A of the
Act, 1972 to contend that an application in
such circumstances would be perfectly
maintainable
before
the
Prescribed
Authority and as such the learned court
below has patently erred in law in rejecting
the said application. In support of his
argument, reliance has been placed on the
judgments of the Apex Court in the cases
of M.S. Grewal and another vs. Deep
Chand Sood and others-AIR 2001 SC
3660, The State of Punjab and another
vs. Shamlal Murari and another-AIR
1976 SC 1177, and M/s Shaha Ratansi
Khimji and sons vs. Proposed Kumbhar
sons Hotel P. Ltd. and others - AIR 2014
SC 2895.

8. No other argument has been raised.

9. On the other hand, Sri Bireshwar
Nath,
learned
counsel
appearing
for
respondent no.2 and 3, assisted by Sri R.K.
Singh Raj, on the basis of averments
contained in the counter affidavit argues
that as the said shops in tenancy of the
petitioner were an encroachment as such
the Nagar Panchayat had published a public
notice on 03.06.2005, a copy of which is
Annexure CA-2 to the counter affidavit and
thereafter
had
demolished
the
said
encroachment. It is also contended that in
the first information report that had been
lodged by the petitioner a final report has
been submitted on 13.06.2006, a copy of
which is Annexure CA-3 to the counter
affidavit, from a perusal of which it
emerges that the Investigating Officer has
recorded that there was an encroachment
which has been removed by the authorities
concerned and that the petitioner, for the
purpose of getting insurance claim, has
lodged the first information report. He also
argues that the Act, 1972 provides for filing
of a separate application and as such there
is no infirmity in the order passed by the
Prescribed Authority.
862 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Responding to the same, learned
counsel for the petitioner contends that he
has filed a rejoinder affidavit as well as
supplementary affidavit dated 28.03.2009
whereby he had brought on record that after
the aforesaid final report had been
submitted by the authorities, the petitioner
had filed his protest application and
thereafter the respondents/landlord had
been summoned against which they had
approached this Court by filing an
application under Section 482 Cr.P.C.
No.2360 of 2009 in re: Mahadev Prasad vs.
State of U.P. and others and this Court has
passed an order on 10.04.2017, a copy of
which
is
Annexure
SA-1
to
the
supplementary affidavit. Placing reliance
on the certificate dated 31.03.2006, which
has been issued by the Nagar Panchayat,
Bachhrawan, a copy of which is Annexure10 to the petition, learned counsel for the
petitioner contends that Nagar Panchayat
has itself indicated that no house or
building
was
demolished
in
the
encroachment drive conducted by them. He
thus contends that it is apparent that the
said shops were demolished by the
landlord/respondents themselves and not by
the Nagar Panchayat.

11. Heard learned counsel for the
contesting parties and perused the records.

12. From the arguments as raised by
the learned counsel for the contesting
parties and perusal of the record, it emerges
that an application under Section 21 of the
Act, 1972 was filed in the year 2004 by the
respondents/landlord which was registered
as PA No.1 of 2004. The case was filed
before the Prescribed Authority praying for
release of two shops under the tenancy of
the petitioner herein. During pendency of
the aforesaid case itself, the petitioner
claims to have filed a civil suit for
permanent
injunction
against
the
landlord/respondents in which an interim
injunction was granted on 01.03.2004.
During pendency of the case before the
Prescribed Authority, the shops were
demolished. There is a dispute as to
whether the shops were demolished by the
Nagar
Panchayat
or
by
the
landlord/respondents themselves inasmuch
as the petitioner claims that the same were
demolished by the landlord while placing
reliance on the certificate issued by the
Nagar Panchayat while at the same time the
contention of landlord/respondents is that
they were demolished on account of
demolition drive that had been carried out
by the Nagar Panchayat which is apparent
from a perusal of the Final Report
submitted by the Investigating Officer
dated 13.06.2006. However, as the same is
a disputed question and the proceedings are
still
pending
before
the
Prescribed
Authority, the Court is not going into that
aspect of the matter and the same may also
not be relevant considering the discussion
on ground (b).

13. After the shops were demolished,
the petitioner filed an application under
Section 29-A of the Act, 1972 praying for a
direction
to
be
issued
to
the
landlord/respondents to either have the
shops reconstructed or a permission be
granted to the petitioner for reconstruction
of the said shops. The application has been
rejected by the Prescribed Authority vide
impugned order dated 23.09.2009 on two
grounds as have already been enumerated
above.

14. So far as the ground (a) is
concerned, as already indicated above, as
the proceedings are still pending before the
Prescribed Authority the Court is not going
into that aspect of the matter as the
11 All. Babulal Chawdhary Vs. Prescribed Auth./Addl. Civil Judge & Ors.
863
discussion may not be relevant considering
the discussion on ground (b).

15. So far as ground (b) is concerned
namely that an application under Section
29-A of the Act, 1972 was not maintainable
and the petitioner should have filed a
separate application, for the said purpose,
the Court would have to consider the
provisions of Section 29-A read with
Sections 29, 28 and 26 of the Act, 1972.

16. For the sake of convenience,
Section 26 of the Act, 1972 is reproduced
as under:-

"26. Certain obligations of the
landlord and tenant-- (1) No landlord
shall without lawful authority or excuse
cut off, withhold or reduce any of the
amenities enjoyed by the tenant.

(2) The landlord shall be bound to
keep
the
building
under
tenancy
windproof and waterproof and, subject to
any contract in writing to the contrary,
carry out periodical whitewashing and
repairs.

(3) Subject to any contract in writing
to the contrary, no tenant shall, whether
during the continuance of the tenancy or
after its determination, demolish any
improvement effected by him in the
building or remove any material used in
such improvement, other than any fixtures
of a movable nature.

1[Explanation.
The
expression
material
used
in
such
improvement
includes the writing of an electrical fitting
or a pipe pertaining to any water
connection.]
(4) The landlord shall give to the tenant a
receipt for rent payable to and received by
him."

Section 28 of the Act, 1972 reads as
under:-

"28.
Enforcement
of
landlord's
obligation regarding repairs, etc. - (1) If
the
landlord
fails
to
carry
out
whitewashing or repairs as required by
sub-section (2) of Section 26, the tenant
may, by notice in writing, call upon him to
carry out the same within one month from
the date of service of such notice.

(2) Where the cost of the requisite
whitewashing or repairs is likely to exceed
the amount of 2[two months' rent] in a
year, then the tenant in his notice shall also
intimate to the landlord his willingness to
pay enhanced rent in accordance with the
provisions of Section 6:

[* * *]

(3) If the landlord fails to comply with
the notice, the tenant may himself carry out
the whitewashing or repairs at a cost not
exceeding 4[two months' rent] in a year
and deduct the amount from the rent, and
in any such case he shall furnish the
account of the expenditure incurred to the
landlord.

(4) Where the tenant claims that the
building requires whitewashing or repairs
to such extent that the cost thereof is likely
to exceed the amount of 1[two months'
rent] in a year, hereinafter in this section
referred to as major repairs , and the
landlord either declines his responsibility
to carry out the same or fails to comply
with the notice, the tenant may apply to the
prescribed authority for an order under
sub-section (5).

(5) The prescribed authority on
receiving an application under sub-section
(4) may, after giving an opportunity of
hearing to the parties

(a) either reject the application; or

(b) require the landlord to carry out
the requisite major repairs within such
period as may be specified in the order,
and on his failure to do so, permit the
tenant to carry out those repairs at a cost
864 INDIAN LAW REPORTS ALLAHABAD SERIES
not exceeding such amount (which shall not
be more than the amount of two years' rent)
and within such period as may be specified
in the order.

(6) Where in pursuance of an order
under sub-section (5) any major repairs
are carried out by the tenant, he shall
furnish an account of the expenditure to the
prescribed authority, which shall certify the
amount recoverable by the tenant, and
thereupon such amount, unless paid or
otherwise adjusted by the landlord, may be
deducted by the tenant from the rent in
monthly instalments not exceeding twentyfive per cent of one month's rent, and in any
such case, the enhancement of rent under
Section 6 shall come into effect only from
the month following the month in which the
cost is fully recovered by the tenant.

(7)- No appeal or revision shall lie
from any order of the prescribed authority
under sub-section (5) or sub-section (6),
which shall be final."

Section 29 of the Act, 1972 reads as
under:-

"29. Special protection to tenants of
buildings
destroyed
by
collective
disturbances,
etc.
(1)
Where
in
consequence of the commission of mischief
or any other offence in the course of
collective disturbances, any building under
tenancy is wholly or partly destroyed, the
tenant shall have the right to re-erect it
wholly or partly, as the case may be, at his
own expenses within a period of six months
from such injury:

Provided that if such injury was
occasioned by the wrongful act or default
of the tenant he shall not be entitled to
avail himself of the benefit of this
provision.

(2) Where in consequence of fire,
tempest, flood or excessive rainfall, any
building under tenancy is wholly or partly
destroyed the tenant shall have the right to
re-erect or repair it wholly or partly, as the
case may be, at his own expense after
giving a notice in writing to the landlord
within a period of one month from such
injury:

Provided that the tenant shall not be
entitled to avail himself of the benefit of this
provision

(a) if such injury was occasioned by his
own wrongful act or default; or

(b) in respect of any re-erection or repair
made before he has given a notice as aforesaid
to the landlord or before the expiration of a
period of fifteen days after such notice, or if
the landlord in the meantime makes an
application under Section 21, before the
disposal of such application; or

(c) in respect of any re-erection or repair
made after the expiration of a period of six
months from such injury or, if the landlord has
made any application as aforesaid, from the
disposal thereof.

(3) Where the tenant, before the
commencement of this Act, has made any reerection or repair in exercise of his rights
under Section 19 of the old Act, or after the
commencement of this Act makes any reerection in the exercise of his right under subsection (1) or sub-section (2),

(a) the property so re-erected or repaired
shall be comprised in the tenancy;

(b) the tenant shall not be entitled,
whether during the tenancy or after its
determination, to demolish the property or
parts so erected or repaired or to remove any
material used therein other than any fixtures
of a movable nature;

(c) Notwithstanding, anything contained
in sub-section (2) of Section 2, the provisions
of this Act shall apply to the building so reerected:

Provided that no application shall be
maintainable under Section 21 in respect of
11 All. Babulal Chawdhary Vs. Prescribed Auth./Addl. Civil Judge & Ors.
865
any such building on the ground mentioned
in clause (b) of sub-section (1) thereof
within a period of three years from the
completion of such re-erection."

Section 29-A of the Act, 1972 reads as
under:

"29-A. Protection against eviction to
certain classes of tenants of land on which
building exists. (1)- For the purposes of
this section, the expressions tenant and
landlord
shall
have
the
meanings
respectively assigned to them in clauses (a)
and (j) of Section 3 with the substitution of
the word land for the word building .

(2) This section applies only to land
let out, either before or after the
commencement of this section, where the
tenant, with the landlord's consent has
erected any permanent structure and
incurred expenses in execution thereof.

(3)
Subject
to
the
provisions
hereinafter contained in this section, the
provisions of Section 20 shall apply in
relation to any land referred to in subsection (2) as they apply in relation to any
building.

(4) The tenant of any land to which
this section applies shall be liable to pay to
the landlord such rent as may be mutually
agreed upon between the parties, and in the
absence of agreement, the rent determined
in accordance with sub-section (5).
(5) The District Magistrate shall on the
application of the landlord or the tenant
determine the annual rent payable in
respect of such land at the rate of ten per
cent per annum of the prevailing market
value of the land, and such rent shall be
payable, except as provided in subsection
(6) from the date of expiration of the term
for which the land was let or from the
commencement of this section, whichever is
later.

(6)(a) In any suit or appeal or other
proceeding pending immediately before the
date of commencement of this section, no
decree for eviction of a tenant from any
land to which this section applies, shall be
passed or executed except on one or more
of the grounds mentioned in sub-section (2)
of Section 20, provided the tenant, within a
period
of
three
months
from
the
commencement of this section by an
application to the court, unconditionally
offers to pay to the landlord, the enhanced
rent of the land for the entire period in suit
and onwards at the rate of ten per cent per
annum of the prevailing market value of the
land together with costs of the suit
(including costs of any appeal or of any
execution or other proceedings).

(b) In every such case, the enhanced
rent
shall,
notwithstanding
anything
contained in subsection (5), be determined
by the court seized of the case at any stage.

(c) Upon payment against a receipt
duly signed by the plaintiff or decreeholder or his counsel or deposit in court of
such enhanced rent with costs as aforesaid
being made by the tenant within such time
as the court may fix in this behalf, the court
shall dismiss the suit, or, as the case may
be, discharge the decree for eviction, and
the tenancy thereafter, shall continue
annually on the basis of the rent so
enhanced.

(d) If the tenant fails to pay the said
amount within the time so fixed (including
any extended time, if any, that the court
may fix or for sufficient cause allow) the
court shall proceed further in the case as if
the foregoing provisions of this section
were not in force.

(7) The provisions of this section shall
have effect, notwithstanding anything to the
contrary contained in any contract or
instrument or in any other law for the time
being in force.
866 INDIAN LAW REPORTS ALLAHABAD SERIES

Explanation. For the purposes of subsection (6) where a case has been decided
against a tenant by one court and the
limitation for an appeal therefrom has not
expired on the date immediately before the
commencement of this section, this section
shall apply as it applies to pending
proceedings and the tenant may apply to
that court for a review of the judgment in
accordance with the provisions of this
section."

17. From perusal of Section 26 of the
Act, 1972 it emerges that there are certain
obligations of the landlord and tenant per
which no landlord shall withhold or reduce
any of the amenities enjoyed by the tenant;
the landlord is bound to keep the building
under tenancy windproof and waterproof
and, subject to any contract in writing to
the
contrary,
carry
out
periodical
whitewashing and repairs.

18. Section 28 of the Act, 1972
provides for enforcement of landlord's
obligations regarding repairs i.e. if the
landlord fails to carryout whitewashing or
repairs as required by sub-section (2) of
Section 26 of the Act, 1972, the tenant
may, by notice in writing, call upon him to
carry out the same within one month from
the date of service of such notice and where
the cost of the whitewashing or repairs is
likely to exceed a certain amount, then the
tenant, in his notice, shall also intimate to
the landlord his willingness to pay
enhanced rent. Where the landlord fails to
comply with the notice, the tenant may
himself carry out the whitewashing or
repairs at a certain cost and deduct the
amount from the rent. In case of major
repairs if the landlord declines to carryout
the same or fails to comply with the notice
the tenant may apply to the Prescribed
Authority for an order under sub-section
(5). The Prescribed Authority on receiving
an application under sub-section (4) of this
Section i.e. for carrying out major repairs
may either reject the application or require
the landlord to carryout requisite major
repairs within such period as may be
specified in the order or permit the tenant
to carry out such repairs

19. Section 29 of the Act, 1972 gives
special protection to tenants of buildings
destroyed by collective disturbances i.e
where in consequence of the commission of
mischief or any other offence, in the course
of collective disturbances, any building
under
tenancy
is
wholly
or
partly
destroyed, the tenant shall have a right to
re-erect it wholly or partly at his own
expense within a period of six months from
such injury. However, in case of fire,
tempest, flood or excessive rainfall if a
building under tenancy is wholly or partly
destroyed the tenant shall have the right to
re-erect or repair it wholly or partly at his
own expense after giving a notice in
writing to the landlord within one month
from such injury.

20. Section 29-A of the Act, 1972,
gives protection against eviction to certain
classes of tenants of land on which building
exists. The said provision of law gives the
liability of the tenant to pay the landlord
such rent as may be mutually agreed upon
between the parties or in the absence
thereto the rent determined in accordance
with sub-section (5). The said Section also
provides for the liability of the tenant upon
failure to pay the amount.

21. Thus, from a perusal of Section
29-A of the Act, 1972, it is clearly apparent
that in case of demolition of a building
under tenancy, no application can be filed
by the tenant praying for direction to the
11 All. The New India Assurance Co. Ltd., Civil Lines, Allahabad & Ors. Vs. Smt. Lajjawati &
 Ors.
867
landlord for reconstruction of the building
or for the tenant to be granted permission to
carryout reconstruction. Thus, it is apparent
that once Section 29-A of the Act, 1972,
itself does not provide for filing of an
application for re-building of a demolished
building under tenancy consequently the
application filed by the petitioner under the
provisions of Section 29-A of the Act, 1972
was clearly not maintainable and as such
there is no illegality or infirmity in the
order impugned dated 23.09.2009.

21. Even if the provisions of Section
28 read with Section 26 of the Act, 1972
are considered and the word 'repair' as
indicated in Section 28 of the Act, 1972 is
seen in the context of Section 26 of the Act,
1972, the said 'repairs' as used in Section
28 of the Act, 1972 would only be confined
to the provisions of Section 26(2) of the
Act, 1972 whereby the landlord is required
to keep the building under tenancy
windproof and waterproof and, subject to
any contract in writing to the contrary,
carry out periodical whitewashing and
repairs. It is not the case in the present
matter that the landlord had failed to carry
out any whitewashing, repairs or had failed
to keep the shops under tenancy windproof
or waterproof rather the shops itself have
been allegedly demolished.

22. Incidentally, the Apex Court in
the case of Trust Jama Masjid Waqf
No.31 vs. Lakshmi Talkies and others -
(2010) 9 SCC 78 while considering the
provisions of Section 29-A of the Act, 1972
has held that for applicability of Section
29-A of the Act, 1972, two conditions must
be satisfied namely (i) that the land alone
has been let out, and (ii) that permanent
structure has been constructed by the tenant
with landlord's consent incurring his own
expenses.

23. In the instant case, it is not the case
of the petitioner that the two conditions were
fulfilled namely that it is only the land that
had been let out to the tenant/petitioner rather
from the facts on record, it clearly emerges
that two shops were let out to the petitioner.
Further it is not the case of the petitioner that
the
shops
were
constructed
by
the
tenant/petitioner with the landlord's consent
incurring his own expenses. Consequently,
the provisions of Section 29-A of the Act,
1972 are clearly not applicable upon the
tenant/petitioner in the facts of the instant
case.

24. So far as the judgments, as have
been referred by the learned counsel for the
petitioner are concerned, none of the
judgments deal with the provisions of
Section 29-A of the Act, 1972 and thus
have no applicability in the facts of the case
already enumerated above.

25. Keeping in view the aforesaid
discussion, no case for interference is made
out. Accordingly, the petition is dismissed.
----------
(2022) 11 ILRA 867
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2022

BEFORE

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

First Appeal From Order No. 1140 of 2014

The New India Assurance Co. Ltd., Civil
Lines, Allahabad & Ors. ...Appellants
Versus
Smt. Lajjawati & Ors. ...Respondents

Counsel for the Appellants:
Sri Rahul Sahi

Counsel for the Respondents: