# Dr. Saryu Prasad Verma v. The District Judge, Lakhimpur Kheri & Ors

- **Citation:** (2016) 3 ILRA 144
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-25
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-saryu-prasad-verma-v-the-district-judge-lakhimpur-kheri-ors-43513
- **Pages:** 8

## Headnote

Indian Penal Code, 1860-Ss. 302/34

Release of building - Release of tenanted shop sought on the ground that the building was in a
dilapidated condition requiring demolition and new construction. Prescribed Authority allowed the
release application after recording satisfaction regarding all mandatory requirements under Rule 17 of
the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, namely necessity of
demolition, preparation of estimate, sanctioned plan and financial capacity of the landlord. Appeal
dismissed by the District Judge affirming the findings.
3 All. Dr. Saryu Prasad Verma Vs The District Judge, Lakhimpur Kheri & Ors.
145

Section 21(1)(b), U.P. Act No. 13 of 1972 - Held that both courts below recorded concurrent
findings of fact based on material on record regarding fulfillment of Rule 17 requirements. Such
findings do not warrant interference in exercise of writ jurisdiction under Article 226 of the
Constitution. Section 21(1)(b) is distinct from Section 21(1)(a); eviction under clause (b) is permissible
only for demolition and reconstruction and not for personal occupation. The landlord must allow reentry of the tenant in the newly constructed building in accordance with Section 24 of the Act.

Section 24 - Tenant directed to vacate by the stipulated date. Landlord directed to reconstruct the
building within the prescribed time and offer possession to the tenant as per Section 24; failing which,
landlord shall be liable to pay monthly compensation.

Writ petition disposed of with directions.

## Text

144 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Although right of privacy stands declared as fundamental right and a person cannot
be deprived of freedom of movement guaranteed by the Article 19 (1)(d) of the Constitution
of India as well as personal liberty granted under Article 21 and it cannot be said that rights
are absolutely rights because they subjected to reasonable restrictions, but in present matter
restrictions imposed on aforesaid fundamental rights of the petitioner are unwarranted
erroneous and unreasonable. This history-sheet is violative of constitutional guarantee and
fundamental rights of the petitioner guaranteed under the Constitution of India.

19. We are satisfied that there were no sufficient grounds for Superintendent of Police
to entertain a reasonable belief that a surveillance was required in the case of the petitioner
and there existed no offence to support the fact that surveillance of the petitioner was
necessary. Hence the order passed by the Superintendent of Police Chitrakoot to open ClassB history- sheet of the petitioner at Police Station Manikpur, District Chitrakoot deserves to
be quashed.

20. In the result, the writ petition is allowed. Class-B history-sheet opened under order
of the Superintendent of Police, Chitrakoot in Police Station Manikpur is hereby quashed.
The opposite parties are directed to close present history-sheet of the petitioner and not to
keep surveillance on the petitioner in pursuance of the said history-sheet.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.02.2016

BEFORE

THE HON'BLE ANIL KUMAR, J.

Rent Control No. - 52 of 2015

Dr. Saryu Prasad Verma ...Petitioner
Versus
The District Judge, Lakhimpur Kheri & Ors. ...Respondents

Counsel for the Petitioner:
Avadhesh Kumar

Counsel for the Respondents:
Shashank Singh, Shishir Chandra

Indian Penal Code, 1860-Ss. 302/34

Release of building - Release of tenanted shop sought on the ground that the building was in a
dilapidated condition requiring demolition and new construction. Prescribed Authority allowed the
release application after recording satisfaction regarding all mandatory requirements under Rule 17 of
the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, namely necessity of
demolition, preparation of estimate, sanctioned plan and financial capacity of the landlord. Appeal
dismissed by the District Judge affirming the findings.
3 All. Dr. Saryu Prasad Verma Vs The District Judge, Lakhimpur Kheri & Ors.
145

Section 21(1)(b), U.P. Act No. 13 of 1972 - Held that both courts below recorded concurrent
findings of fact based on material on record regarding fulfillment of Rule 17 requirements. Such
findings do not warrant interference in exercise of writ jurisdiction under Article 226 of the
Constitution. Section 21(1)(b) is distinct from Section 21(1)(a); eviction under clause (b) is permissible
only for demolition and reconstruction and not for personal occupation. The landlord must allow reentry of the tenant in the newly constructed building in accordance with Section 24 of the Act.

Section 24 - Tenant directed to vacate by the stipulated date. Landlord directed to reconstruct the
building within the prescribed time and offer possession to the tenant as per Section 24; failing which,
landlord shall be liable to pay monthly compensation.

Writ petition disposed of with directions.

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

1. Heard Shri Avadhesh Kumar, learned counsel for the petitioner, Shri Shishir
Chandra, learned counsel for the opposite party nos.3 to 6 and perused the record.

2. By means of the present writ petition, the petitioner has challenged the impugned
order dated 29.05.2015 passed by District Judge, Lakhimpur Kheri thereby dismissing the
appeal and order dated 24.01.2015 passed by Prescribed Authority (Rent Control)/Civil
Judge (Senior Division), Lakhimpur Kheri by which release application filed by opposite
party nos.3 to 6 under Section 21 (1) (b) of Urban Buildings (Regulation of Letting, Rent
and Eviction) Act (hereinafter referred as U.P. Act No.13) of 1972 has been allowed.

3. Facts in brief as submitted by Shri Avadhesh Kumar, learned counsel for the
petitioner are that petitioner is a tenant of a shop situated at Main Road in front of Tahsil,
Mohalla, Nai Basti, Lakhimpur, District-Kheri.

4. On 25.01.2008, landlords/opposite party nos.3 to 6 filed an application for release of
shops under Section 21 'A' of U. P. Act No.13 of 1972, accordingly, P. A. Case No.01/2008
was registered before the Prescribed Authority (Rent Control)/Civil Judge (Senior Division),
Lakhimpur Kheri and on 09.07.2008, Dr. Saryu Prasad Varma who is the original tenant of
the shop filed his written statement.

5. On 20.08.2008, landlords/opposite party nos.3 to 6 moved an application for
impleadment under Order 1 Rule 10 (2) C.P.C. along with an application for amendment
under Order 6 Rule 17 C.P.C. before the opposite party no.2 to implead the name of the
petitioner/Dr. Saryu Prasad Varma s/o Bhagwan Deen Varma, R/O Mohalla Rajgarh,
Lakhimpur, Pargana and District Kheri as opposite party in the memo of application for
release, allowed by order dated 25.03.2009.

6. Thereafter, on 19.09.2009, petitioner filed his written statement that he is the existing
tenant of the shop for the last 30-31 years with his brother (original tenant) Dr. Saheb Lal
Varma, s/o Sri Bhagwan Deen Varma, has already paid the entire rent of the shop regularly
to the landlords.
146 INDIAN LAW REPORTS ALLAHABAD SERIES

7. On 19.03.2012, opposite party nos.3 to 6 again moved an application for amendment
in the memo of release application, allowed by order dated 02.11.2012 passed by Prescribed
Authority (Rent Control)/Civil Judge (Senior Division), Lakhimpur Kheri.

8. On 19.12.2013, landlords/opposite party nos.3 to 6 moved another application for
amendment under Order 6 Rule 17 C.P.C. to which petitioner filed his objection, allowed by
order dated 05.02.2014 passed by opposite party no.2. The said order has been challenged
by the petitioner by filing Writ Petition No.37 (RC) of 2014, disposed of by order dated
12.03.2014 which on reproduction reads as under :-

"By means of this writ petition, the petitioner has challenged the order passed by
the Prescribed Authority allowing the amendment application.

It has been submitted by the learned counsel for the petitioner that the amendment
application was filed after conclusion of arguments and when a date has been filed for
delivery of judgment. He, therefore, states that the amendment application should not have
been entertained at this stage.

Be that as it may. This court is not inclined to interfere at this state. In case the
Prescribed Authority decides the case against the petitioner and occasion arises for the
petitioner to challenge the same, it will be open for the petitioner to press all the grounds
that has been taken in this writ petition assailing the order impugned.

With the aforesaid observations, the writ petition is disposed of. "

9. In addition to the above said facts, petitioner's filed an application under Order 7
Rule 11 C.P.C., rejected by order dated 24.04.2013 passed by Additional Civil Judge
(Senior Division), Court No.2, Lakhimpur Kheri, challenged by filing Writ Petition No.111
(R/C) of 2014, disposed of by order dated 25.11.2014, operative portion of the same reads as
under :-

"In view of what has been discussed above, I do not find any sufficient ground to
interfere with the orders impugned in this writ petition. The Prescribed Authority is fully
competent and empowered to consider the objections raised by the petitioner with respect to
maintainability of the release application for want of notice, payment of prescribed court fee
and the maintainability of the release application.

The writ petition is, therefore, finally disposed of with the direction that the
Prescribed Authority shall consider the maintainability of the release application for want of
statutory notice, and other objections raised on behalf of the petitioner at the time of final
disposal of the release application."

10. Lastly by order dated 24.01.2015, opposite party no.2 allowed the release
application filed by the opposite party nos.3 to 6 under Section 21 (1) (b) of the U. P. Act
3 All. Dr. Saryu Prasad Verma Vs The District Judge, Lakhimpur Kheri & Ors.
147
No.13 of 1972, challenged by the petitioner by filing Rent Appeal No.2 of 2015, dismissed
by order dated 29.05.2015 passed by District Judge, Lakhimpur Kheri.

11. Shri Avadhesh Kumar, learned counsel for the petitioner while challenging the
impugned orders submits that the same are contrary to law as while allowing the application
filed under Section 21 (1) (b) of the U. P. Act No.13 of 1972, all four requirements of Rule
17 of U. P. Act No.13 of 1972 have not been followed and ruling given by the opposite
party nos.3 to 6 have wrongly been relied upon.

12. It is further submitted by Shri Avadhesh Kumar, learned counsel for the petitioner
that the courts below have erred in holding that building is in dilapidated condition and
require demolition. Hence, the impugned orders under challenged in the present writ petition
are unsustainable and liable to be stayed.

13. Shri Avadhesh Kumar, learned counsel for the petitioner further submitted that if
the re-entry of the petitioner is allowed in the shop in question at the same place by the
landlords/opposite party nos.3 to 6 as per provisions under Section 24 of U. P. Act No.13 of
1972, then in that circumstances, landlords may be permitted to reconstruct the building in
pursuance to the impugned orders.

14. Shri Shishir Chandra, learned counsel for the opposite parties does not dispute the
above submission. However, he submits that re-entry of the petitioner in the shop shall be
allowed after being constructed only within the parameter of under Section 24 of U.P. Act
No.13 of 1972.

15. I have heard learned counsel for the parties and gone through the records.

16. Section 21 of the Act provides for proceedings for release of building under
occupation of a tenant. The relevant portion of Sub-section (1) of Section 21 of the Act is as
under:

21. Proceedings for release of building under occupation of tenant. -- (1) The
Prescribed Authority may. on an application of the landlord 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 bona fide required either in its existing form or after
demolition and new construction by the landlord for occupation by himself or any member
of his family, or any person for whose benefit it is held by him, either for residential
purposes or for purposes of any profession, trade or calling, or where the landlord is the
trustee of a public charitable trust, for the objects of the trust;

(b) that the building is in a dilapidated condition and is required for purposes of
demolition and new construction.
148 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Clauses (a) and (b), reproduced above, would show that they deal with different
situations. Clause (a) deals with eviction of a tenant on the ground of personal need of the
landlord while Clause (b) deals with eviction of tenants who are occupying buildings that
are dilapidated and need demolition and new construction. Where a landlord seeks eviction
of a tenant on the ground that the building is bona fide required by him, the building need
not be dilapidated at all. It may be a perfectly sound building. Yet the landlord may, after
eviction of the tenant, demolish it and construct a new building to suit his requirements and
taste. On the other hand, the purpose of eviction under Clause (b) is to replace the
dilapidated buildings and carry on new construction so that the land which is becoming
scarce day-by-day may be better utilised. The intention under sub clause (b) is not the ouster
of the tenant completely and allow the landlord to occupy the new constructed building or to
let it out to some other person than the tenant who vacated the dilapidated building. This is
clarified in unambiguous words by the provisions of Section 24 of U. P. Act No.13 of 1972
that stands as under:

24. Option of re-entry by tenant. -- (1) Where a building is released in favour of
the landlord and the tenant is evicted under Section 21 or on appeal under Section 22, and
the landlord either puts or causes to be put into occupation thereof any person different from
the person for whose occupation according to the landlord'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 of 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 landlord to place the evicted tenant
in occupation of the building on the original terms and conditions, and on such order being
made, the landlord and any person who may be in occupation thereof shall give vacant
possession of the building to the said tenant, failing 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 landlord after obtaining a release order under Clause (b) of Subsection (1) of Section 21demolishes a building and constructs a new building or buildings on
its site, then the District Magistrate may. on an application being made in that behalf by the
original tenant within such time as may be prescribed, allot to him the new building or such
one of them as the District Magistrate after considering his requirements thinks fit, and
thereupon that tenant shall be liable to pay as rent for such building an amount equivalent to
one percent 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
3 All. Dr. Saryu Prasad Verma Vs The District Judge, Lakhimpur Kheri & Ors.
149
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.

18. These provisions clearly indicate that the outgoing tenant has the option to
take the reconstructed building on a monthly rent to be determined and that will be
equal to one per cent of the cost of construction. Such rent would always be several
times higher than the old rent that was being paid for the dilapidated building and
some of the tenants may decline to take the newly constructed building on rent. They
cannot be forced to do so and if the tenant declines, the landlord will be free to deal
with the newly constructed building as he likes. But if a landlord does not show his
willingness to let the outgoing tenant occupy the reconstructed building, then he
cannot be allowed to proceed under Sub-clause (b) of Section 21 (1) of the Act. A
Petitioner who seeks eviction of a tenant on the ground of the building being
dilapidated should, therefore, in his petition express his willingness that he is willing
to let out the reconstructed accommodation to the tenant whose eviction he is
seeking. If he does not do so, it is the duty of the Prescribed Authority to inquire
from him specifically whether he is so willing. If the landlord says that he is not
willing to let out the accommodation is the reconstructed building, to the tenant, the
matter should not be proceeded further under Clause (b). A landlord, who needs the
reconstructed building for his own use, must take recourse to the provisions of
Section 21 (1)(a) and Sub-clause (b) is out of bounds for him even though the
building may be dilapidated and in a ruinous condition. The tenant has the option to
continue to live in a building that is in a stale of ruins and such a tenant cannot be
evicted by a landlord, who is unwilling to let out the reconstructed accommodation
to such tenant, except under the general law of tenancy contained in the Transfer of
Property Act.

19. There is a lacuna in U.P. Act No. 13 of 1972 in as much as it does not
provide any time limit for the landlord to reconstruct after getting possession in
proceedings under section of the Act. This lacuna can be filed up by providing time
limit in the order itself while allowing release application under the said section.
Accordingly, it is directed that within eight months from taking possession landlord
shall demolish and shall make new constructions and handover the same to the
tenant. The rent of the newly constructed portion shall be Rs. 1,500/- per month
inclusive of all taxes etc. The newly reconstructed portion, which is to be handed
over to the tenant, must contain four rooms of average dimensions and other
amenities. It is further directed that if within 8 months from taking possession new
construction is not made and handed over to the tenant then since after 8 months
landlord shall be liable to pay damages to the tenant at the rate of Rs. 1,500/- per
month till new construction and delivery of possession of the newly construction
portion to the tenant. (See Syed Jalil Abbas v. Mohd. Yamin AIR 2004 SC 3683).

20. Further, Rule 17 of U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act (13 of 1972) reads as under :-
150 INDIAN LAW REPORTS ALLAHABAD SERIES

"17. Application for release on the ground far demolition and new
construction [Sections 21 (1) (b) and 34 (8).--(1) Before allowing an application for
release of a building under Section 21 (1) (b) on the ground that it is required for
purposes of demolition and new construction, the prescribed authority shall satisfy
Itself :

(i) that the building requires demolition ;

 (ii) that a proper estimate of expenditure over the proposed demolition and
new construction has been prepared ;

(iii) that a plan has been duly prepared and conforms to the bye-laws or
regulations of the local authority or other statutory authority under any law in that
behalf for the time being in force ; and

(iv) that the landlord has the financial capacity for the proposed demolition
and new construction."

21. In the instant matter, from the material on record, the position which
emerges out is that both the courts below have given a concurrent finding of fact that
the mandatory requirements as provided under Rule 17 of U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act (13 of 1972) has been fulfilled by the
landlord and taking into consideration the said fact, the release application moved by
the opposite party nos.3 to 6 under Section 21 (1) (b) of the U. P. Act No.13 of 1972
has been allowed by opposite party no.2 and the appeal was dismissed by opposite
party no.1. So keeping in view the above said concurrent finding of facts given by
the court below, I do not find any good ground to interfere in this matter while
exercising the power of judicial review under Article 226 of the Constitution of
India. (See Abdul Gaffer v. H. S. Srinivasa Setty (dead) by Lrs. 2002 (1) ARC 129,
Thakur Madan Mohanji Maharaj (Sri) and another v. VII Additional District
Judge, Mathura and others 2002 (1) ARC 47 and Basanti Bai (Smt.) v. Vith
Additional District Judge, Kanpur and another 2004 (2) ARC 718).

22. Taking into consideration the above said facts as well as law laid down by
this Court in the case of Smt. Shoshi Goyal v. IInd Additional District Judge,
Bulandshahr and another 1997 (1) ARC 572 and S. Subramanimum, Chairman'
and Managing Director. Central Bank of India and others v. State of U. P., and
another1995 (5) ARC 463, the tenant/petitioner is directed to vacate the shop on or
before 30.04.2016 and handover the peaceful possession to the landlords. Thereafter,
landlords shall reconstruct the same as per sanctioned plan within a period of one
and half years and after completion, offer of the possession of the shop shall be
given to the tenant/petitioner as per provisions of Section 24 of U. P. Act No.13 of
1972. However, if the landlords/opposite party nos.3 to 6 fail to construct the shop
within a period of one and half years, then they shall give a compensation of
Rs.1500/- per month to the petitioner till the shop is offered to the petitioner.

23. With the above observations, the writ petition is disposed of.
--------
3 All. Smt. Guddan Vs State Of U.P. & Ors.
151

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.02.2016

BEFORE

THE HON'BLE RAJAN ROY, J.

Service Single No. - 4652 of 2015

Smt. Guddan Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sheshnath Bhardwaj 'Advocate

Counsel for the Respondents:
C.S.C.

Compassionate Appointment- Petitioner, widow of a Constable of P.A.C., sought compassionate
appointment on a Class-IV post as her husband had been missing since 11.04.2007. FIR was lodged
on the same date and final report was submitted by the police, which was accepted by the Chief
Judicial Magistrate. More than seven years had elapsed since the date of disappearance. Despite
medical fitness and completion of formalities, appointment was denied on the ground that no
declaration of civil death had been obtained from a competent Civil Court.

Missing Government Servant - Held that once the conditions prescribed under Section 108 of the
Indian Evidence Act are satisfied, a statutory presumption of civil death arises and no separate
declaration by a Civil Court is mandatory. Reliance placed on Division Bench judgments in Ramakant
Singh v. State of U.P. and District Judge v. Saurabh Kumar. After the presumption arises, the burden
shifts on the person asserting that the missing person is alive. In the absence of any such pleading or
proof by the State, denial of compassionate appointment on the ground of non-submission of civil
death certificate is unsustainable.

Presumption of Civil Death - Payment of death-cum-retirement benefits to the petitioner further
establishes that the authorities themselves accepted the presumption of civil death. Once such
presumption is accepted for retiral benefits, the same cannot be rejected for compassionate
appointment.

Requirement of Civil Court Declaration - Direction issued to the respondents to consider and
grant compassionate appointment to the petitioner on a Class-IV post under the U.P. Recruitment of
Dependents of Government Servants Dying-in-Harness Rules, 1974 within six weeks, ignoring the
demand for civil death declaration.

Writ petition disposed of with directions.

(Delivered by Hon'ble Rajan Roy, J.)