# Deepak Kumar Baijal v. Prescriberd Authority/Additional District Magistrate-VII,Kanpur Nagar & Ors

- **Citation:** (2019) 1 ILRA 952
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-25
- **Case number:** Writ A(Rent Control) No. 11130 of 2019
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-kumar-baijal-v-prescriberd-authority-additional-district-magistrate-vii-44508
- **Pages:** 4

## Headnote

Letting, Rent and Eviction) Act, 1972:
Sections 21(1)(a), 12(1) & (3). Vacancy
under Section 12 can be declared even if
an appeal against order of release is
pending.
Order passed by the R.C. &E.O. under Section
12 (3) challenged on the ground of jurisdiction
citing pendency of appeal against release
application. No prohibition under the U.P. Act
No. 13 of 1972 that if an appeal against the
order of release under Section 21(1)(a) of the
Act is pending then vacancy under Section 12
cannot be declared. (Para 11)

It is open to the landlord to file an application
under Section 21(1)(a) and also file an
application under Section 12(3) of the Act. The
landlord cannot be compelled to wait till such
time as the appeal is decided. (Para 11)
Precedent followed: -

1.Sarla Devi (Smt.) Vs. PushpaAgnihotri (Smt.)
2008 (2) ARC 725

2.Sukhant Gupta Vs. Rent Control and Eviction
Officer, Kanpur and another 1991 (2) ARC 445

3.Naubat Ram Sharma Vs. Addl. District Judge
IX, Moradabad and others, 1987 (2) ARC 121

4.Munnilal Vs. Prescribed Authority, Agra and
others, 1992 ACJ 789 (E-4)

## Text

952 INDIAN LAW REPORTS ALLAHABAD SERIES
take recourse to the remedy of an appeal
provided under Section 101 of the J. J. Act,
2015.

17. Subject to above, the petition is
disposed off.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2019

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ A(Rent Control) No. 11130 of 2019

Deepak Kumar Baijal ...Petitioner
Versus
Prescriberd Authority/Additional District
Magistrate-VII,Kanpur Nagar & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Chandan Sharma, Sri Piyush Sinha, Sri
Ravi Shankar Prasad.

Counsel for the Respondents:
C.S.C. Sri J.P. Singh, Sri Atul Dayal

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972:
Sections 21(1)(a), 12(1) & (3). Vacancy
under Section 12 can be declared even if
an appeal against order of release is
pending.
Order passed by the R.C. &E.O. under Section
12 (3) challenged on the ground of jurisdiction
citing pendency of appeal against release
application. No prohibition under the U.P. Act
No. 13 of 1972 that if an appeal against the
order of release under Section 21(1)(a) of the
Act is pending then vacancy under Section 12
cannot be declared. (Para 11)

It is open to the landlord to file an application
under Section 21(1)(a) and also file an
application under Section 12(3) of the Act. The
landlord cannot be compelled to wait till such
time as the appeal is decided. (Para 11)
Precedent followed: -

1.Sarla Devi (Smt.) Vs. PushpaAgnihotri (Smt.)
2008 (2) ARC 725

2.Sukhant Gupta Vs. Rent Control and Eviction
Officer, Kanpur and another 1991 (2) ARC 445

3.Naubat Ram Sharma Vs. Addl. District Judge
IX, Moradabad and others, 1987 (2) ARC 121

4.Munnilal Vs. Prescribed Authority, Agra and
others, 1992 ACJ 789 (E-4)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Ravi Shankar Prasad,
learned Senior Advocate, assisted by Sri
Piyush Sinha, learned counsel for the
petitioner and Sri Atul Dayal, learned Senior
Advocate, assisted by Sri J.P. Singh, learned
counsel for the respondents.

2. The petitioner has filed today an
impleadment application dated 24.07.2019,
to implead the owner of the house, namely,
Sri Sanjay Mittal, son of late K.K. Mittal as
per detail mentioned in the prayer clause of
the application. The application is allowed.
Sri Sanjay Mittal is allowed to be
impleaded as respondent No.4.

3. This writ petition has been filed
under Article 226 of the Constitution of
India praying for the following relief:-

"(a) Issue a writ, order or
direction in the nature of certiorari
quashing the impugned order dated
07.06.2019 (Annexure - '1' to this writ
petition)
passed
by
the
Prescribed
Authority, respondent no.1.

(b) Issue a writ, order or direction
in the nature of mandamus commanding
upon the respondents not to interfere with the
peaceful possession of the petitioner in
1 All. Deepak Kumar Baijal Vs. Prescribed Authority/Additional District Magistrate-VII, Kanpur Nagar & Ors. 953
premise, House No.111/316 Harsh Nagar,
P.S. Najirabad, Kanpur Nagar.

4. Briefly stated facts of the present
case are that Vinay Kumar Jain and Vijay
Kumar Jain both are the sons of Satya
Narain Jain. Sri Satya Narayan Jain was
the original owner and landlord of House
No.111/316, Harsh Nagar, P.S. Najirabad,
Kanpur Nagar. After his death his two
sons, namely, Vinay Kumar Jain and
Vijay Kumar Jain became owner and
landlord
of
the
aforesaid
house.
Subsequently, Vijay Kumar Jain has sold
his share in the aforesaid house to his
brother's wife Smt. Rekha Jain by a
registered sale deed dated 08.11.2006.
Vinay Kumar Jain and his wife Rekha
Jain sold the aforesaid entire house to the
newly impleaded respondent no.4 by a
registered sale deed dated 06.12.2017,
registered on 12.12.2017.

5. One Sri Kashi Nath Baijal was the
tenant in a portion of the aforesaid house.
He had three sons, namely, Pramod
Kumar Baijal, Deepak Kumar Baijal and
Jyoti Kumar Baijal. During his life time
an order dated 24.07.1992 was passed by
the Rent Control and Eviction Officer,
Kanpur Nagar, declaring the vacancy of
the disputed portion of the house in
question. Sri Baijal challenged that order
in Rent Revision No.148 of 1992 which
was
allowed
by
judgment
dated
14.09.2004 passed by the Additional
District Judge, Court No.1, Kanpur
Nagar, concluding as under:-

"Thus,
from
he
above
discussions, it is clear that there was no
occasion for the R.C. & E.O. to review the
order passed by his predecessor for not
declaring the vacancy. Once an order was
passed for declaring that no vacancy exists
then the said order could not have been
reviewed by the R.C. & E.O. Furthermore, the
property in dispute was not vacant and the
revisionist was having the possession of the
same in pursuance of the tripartite agreement
and his possession was the of a sub-tenant.
That after retirement the revisionist paid rent
to the then owner and the owner/landlord
accepted the rent and there was no vacancy
and he became owner. In these circumstances,
the revision deserves to be allowed and the
order dated 24.7.1992 including the order
dated 18.1.92 declaring vacancy and the
order dated 23.1.92 ordering allotment in
favour of O.P. No.1 deserve to be quashed,
and accordingly the revision deserves to be
allowed as the R.C. & E.O. has illegally
exercised the jurisdiction vested in him in
passing the impugned order."

6. From the aforesaid judgment
dated 14.09.2004 in Rent Revision
No.148 of 1992, it appears that original
tenant was State Bank of India and
subsequently Kashi Nath Baizal was
admitted as a tenant.

7. Sri Pramod Kumar Baizal was the
eldest son of the tenant - Sri Kashi Nath
Baizal who acquired House No. 10/M/1,
Block - 10, Scheme 40, Dabhauli, Kanpur
Nagar, in vacant state by a registered sale
deed dated 16.01.1984. Subsequently,
Pramod
Kumar
Baizal
died
on
23.05.2001. His wife Madhu Baizal
inherited the said house and got it free
hold in her name by free hold deed dated
04.02.2005 and thereafter sold it in the
year 2006. Another son, namely, Jyoti
Kumar Biazal acquired a Flat No.5, 2nd
Floor,
Plot
No.4,
MIG
Schme,
Patrakarpuram, Kanpur Nagar, jointly
with his wife Smt. Maya Baizal on
12.01.2011. He also acquired a very big
house bearing Municipal No.62, Surendra
954 INDIAN LAW REPORTS ALLAHABAD SERIES
Nagar, behind Durga Model School, Old
Rawatpur, Kanpur Nagar, which as per
his own written submission filed in case no.14
of 2018 (Shiv Sahay Misra Vs. Deepak
Kumar Baizal and others); has been occupied
by him after it was vacated by the outgoing
tenant - Mrs. Uma Kapoor. According to the
petitioner, the son of Jyoti Kumar Baizal is
running a Marriage Hall under the name and
style of "Dream Creation". Smt. Durga Baizal,
wife of the original tenant Kashi Nath Baizal
had died on 08.06.2017. Sons of late Kashi
Nath Baizal were residing with Kashi Nath
Baizal in the disputed house.

8. From the facts briefly noted above
it is evident that the family members of
the tenant Kashi Nath Baizal, who were
residing with him had acquired three
residential accommodations in vacant
state as mentioned above. On these facts
the provisions of Section 12(3) of the Act
stand clearly attracted. The disputed
house was being used as residential
building. The family members of the
tenant
Kashi
Nath
Baizal
as
aforementioned have acquired in vacant
state one flat and two houses out of which
the house acquired in the year 1984 was
sold in the year 2006. Still they have in
their possession one flat at Patrakarpuram
and a very big house bearing Municipal
No.62, Surendra Nagar, Old Ravatpura,
Kanpur Nagar and they are in possession
of the aforesaid flat and the house which
are situate in the same city i.e. Kanpur
Nagar where the disputed house is situate.
Therefore, by legal fiction as created in
sub-section 3 of Section 12 of U.P. Act
No.13 of 1972, the tenant shall be deemed
to have ceased to occupy the building
under his tenancy and the vacancy has
occurred by operation of the statutory
provisions of sub section 1 of Section 12
of U.P. Act No.13 of 1972.

9. Briefly on the facts as
aforenoted, the impugned order dated
07.06.1919 in case no. 14 of 2018 (Shiv
Sahay Mishra Vs. Deepak Kumar and
others) has been passed by the Rent Control
and
Eviction
Officer/Additional
City
Magistrate (7) Kanpur Nagar, under Section
12 of U.P. Act No.13 of 1972 in respect of
the
disputed
portion
of
the
House
No.111/316, Harsh Nagar, P.S. Najirabad,
Kanpur Nagar, which does not suffer from
any infirmity for the reasons and facts
aforenoted.

10. Learned counsel for the
petitioner now submits that a release
application being P.A. Case No. 26 of
2009 (Vijay Kumar Jain Vs. Durga Baizal
and others) was filed by the erstwhile
owner Vijay Kumar in the year 2009
which was allowed by order dated
02.11.2011 against which a Rent Appeal
no.155 of 2011 was filed by the tenants
which is pending and, therefore, the R.C.
& E.O. was having no jurisdiction to pass
the impugned order under Section 12 of
the U.P. Act No.13 of 1972. I do not find
any force in this submission.

11. The provisions of Section 12 of
U.P. Act No. 13 of 1972 provides for
deemed vacancy by operation of law on
happening of certain events as prescribed
under the provisions itself. Section 21(1)(a)
provides for release of the accommodation
on the ground of bonafide need of the
landlord. In the present set of facts the release
application was filed by the erstwhile owner.
There is no prohibition under the U.P. Act
No. 13 of 1972 that if an appeal against the
order of release under Section 21 (1)(a) of
the Act is pending then vacancy under
Section 12 of the Act can not be declared.
Similar controversy came for consideration
before a coordinate bench of this Court in
1 All. Sanjay Alias Mathura Vs. Onkar Arora
955
Sarla Devi (Smt.) Vs. Pushpa Agnihotri
(Smt.) 2008 (2) ARC 725 (paras 6 & 7)
and following the earlier judgments in
Sukhant Gupta Vs. Rent Control and
Eviction Officer, Kanpur and another
1991(2) ARC 445, Naubat Ram Sharma
Vs.
Addl.
District
Judge
IXth,
Moradabad and others, 1987 (2) ARC
121 and Munnilal Vs. Prescribed
Authority, Agra and others, 1992 ACJ
789, it has been held that it is open to the
landlord to file an application under
Section 21(1)(a) of the Act and also file
an application under Section 12(3) of the
Act. The landlord can not be compelled to
wait till such time as the appeal is
decided.

12. For all the reasons aforestated, I
do not find any merit in this writ petition.
Consequently, the writ petition fails and is
hereby dismissed.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.07.2019

BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ A(Rent Control) No. 10463 of 2019

Sanjay Alias Mathura ...Petitioner/Tenant.
Versus
Onkar Arora ...Respondent/Landlord.

Counsel for the Petitioner:
Sri Awadhesh Kumar Malviya.

Counsel for the Respondent:
--

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972:
Section 34 (1). U.P. Urban Buildings
(Regulation
of
Letting,
Rent
and
Eviction) Rules, 1972: Rules 16 and 22.
Issuance of commission cannot be to
assist a party to collect evidence - it is
not a right vested in the litigant.
Application
for
issuance
of
commission
U/S
34
to
conduct
inspection filed at the stage where
parties had closed their evidence. Not
permissible at the stage of arguments
to fill up lacunae in evidence.
The general provisions regarding the
issuance of commission as contained
under
Order
XXVI
C.P.C
would
be
applicable to any commission issued for
the purposes described under Section 34
(1) (c) by any of the authorities under the
Act of 1972. (Para 12)
The object of the provision for issuance of
commission cannot be to assist a party to
collect evidence or to initiate a roving
enquiry. (Para 18)

Precedent followed: -
1.Ranbir Singh Sheoran Vs. VIth Additional
District Judge, Muzaffar Nagar &Ors., 1997 (2)
ARC 347

2.Son Pal Vs. Vth Additional District Judge,
Aligarh &Ors., 1999 (2) ARC 596

3.Avinash Chandra Tewari Vs. ADJ, Court
No.3, Unnao &Ors., 2010 (2) ARC 84

4.Hari Kishore Vs. Smt. Subhasini Devi and
others, 2019 (134) ALR 817 (E-4)

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri A.K.Malviya, learned
counsel for the petitioner.

2. The present writ petition seeks to
challenge the order dated 01.05.2019
passed by the Judge, Small Causes Court,
Saharanpur in P.A. Case No. 26 of 2016
whereby the application (Application No.
52-Ga) filed by the petitioner under
Section 34 (1) (c) of U.P. Act No. 13 of
1972 read with Rule 16 of U.P. Urban
Buildings (Regulation of Letting, Rent