# Mohd. Ikram & Anr v. Smt. Shamshana

- **Citation:** (2024) 2 ILRA 610
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-16
- **Case number:** Writ-A No. 12683 of 2023
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ikram-anr-v-smt-shamshana-51447
- **Pages:** 5

## Headnote

Tenancy Law - U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 21(1)(a) - U.P.
(Regulation of Urban Premises) Tenancy
Act, 2021 - Section 46 - Maintainability of
Release Application - Petitioners (tenants)
challenged appellate order dated 23.05.2023
setting aside Prescribed Authority's order dated
05.03.2022, which dismissed landlady's release
application under Section 21(1)(a) of U.P. Act
No. 13 of 1972 as non-maintainable - Held,
release application filed on 22.01.2021 was not
maintainable, as U.P. Act No. 13 of 1972 was
repealed by U.P. Ordinance No. 2 of 2021
(effective 11.06.2020, lapsed 31.03.2021) and
U.P. Ordinance No. 3 of 2021 (effective
11.01.2021), followed by U.P. Act No. 16 of
2021 (retrospective from 11.01.2021) - Section
46(2) of U.P. Act No. 16 of 2021 protects
pending proceedings under U.P. Act No. 13 of
1972, but release application filed post-repeal
lacks jurisdiction - Appellate Authority's reliance
on
landlady's
prior
notice
(01.07.2020)
erroneous, as no notice required for Section
21(1)(a) application unless filed within three
years of property purchase - Krishna Kumar
Singh Vs St. of Bihar followed, clarifying
Ordinance's legal effect and lapse - Prescribed
Authority's dismissal upheld, appellate order set
aside. (Para 9-11)

Writ petition allowed.

List of Cases Cited:

## Text

610 INDIAN LAW REPORTS ALLAHABAD SERIES
Committee, who shall do the needful in the
matter as per Rule 14 of 1998 Rules. In any
case, final decision shall be taken by the
Regional Selection Committee within six
weeks from the date of receipt of papers in
the Office of Regional Joint Director of
Education from the District Inspector of
Schools. It is further provided that in case,
the Management does not comply with the
directions issued hereinabove in forwarding
the papers of the petitioner for promotion,
it will remain open for the District
Inspector of Schools to take appropriate
measure in the matter to ensure that the
papers are forwarded within the time to the
Regional Joint Director of Education.

12. With the aforesaid observations
and directions, the petition stands allowed.
----------
(2024) 2 ILRA 610
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 12683 of 2023

Mohd. Ikram & Anr. ...Petitioners
Versus
Smt. Shamshana ...Respondent

Counsel for the Petitioners:
Sri Firoz Haider, Sri Abu Bakht

Counsel for the Respondents:
Sri Komal Mehrotra

Tenancy Law - U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 21(1)(a) - U.P.
(Regulation of Urban Premises) Tenancy
Act, 2021 - Section 46 - Maintainability of
Release Application - Petitioners (tenants)
challenged appellate order dated 23.05.2023
setting aside Prescribed Authority's order dated
05.03.2022, which dismissed landlady's release
application under Section 21(1)(a) of U.P. Act
No. 13 of 1972 as non-maintainable - Held,
release application filed on 22.01.2021 was not
maintainable, as U.P. Act No. 13 of 1972 was
repealed by U.P. Ordinance No. 2 of 2021
(effective 11.06.2020, lapsed 31.03.2021) and
U.P. Ordinance No. 3 of 2021 (effective
11.01.2021), followed by U.P. Act No. 16 of
2021 (retrospective from 11.01.2021) - Section
46(2) of U.P. Act No. 16 of 2021 protects
pending proceedings under U.P. Act No. 13 of
1972, but release application filed post-repeal
lacks jurisdiction - Appellate Authority's reliance
on
landlady's
prior
notice
(01.07.2020)
erroneous, as no notice required for Section
21(1)(a) application unless filed within three
years of property purchase - Krishna Kumar
Singh Vs St. of Bihar followed, clarifying
Ordinance's legal effect and lapse - Prescribed
Authority's dismissal upheld, appellate order set
aside. (Para 9-11)

Writ petition allowed.

List of Cases Cited:

1. Krishna Kumar Singh Vs St. of Bihar; (2017) 3
SCC 1

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. Heard Shri Abu Bakht, learned
counsel for the petitioners and Shri Komal
Mehrotra, learned counsel for the sole
respondent/landlady.

2. The instant writ petition, at the
instance of petitioners/tenants, has been
filed assailing the order dated 23.5.2023
passed by the learned District Judge,
Saharanpur in Rent Appeal No. 15 of 2022
whereby and whereunder the rent appeal
has been allowed the order of the learned
Prescribed Authority dated 5.3.2022 has
been set aside and the matter has been
remanded back to the learned Prescribed
2 All. Mohd. Ikram & Anr. Vs. Smt. Shamshana
611
Authority for considering the release
application under Section 21 (1) (a) of the
U.P. Act No. 13 of 1972, afresh.

3. The facts giving rise to the
controversy involved between the parties
lies in a narrow compass. A release
application under Section 21 (1) (a) of the
U.P. Act No. 13 of 1972 was filed on
22.1.2021
by
the
respondent/landlady
against the petitioners setting up a need for
her son to expand his business and augment
his income so as to meet out family
liabilities for the shop 'A' and 'B',
respectively under the tenancy of the
petitioners. The release application was
registered as PA Case No. 6 of 2021. The
petitioners
appeared
and
filed
their
objections.
The
learned
Prescribed
Authority framed an issue as to whether the
release application under Section 21 (1) (a)
of the U.P. Act No. 13 of 1972 was
maintainable and proceeded to hold that
since the release application was filed on
22.1.2021
after
the
Uttar
Pradesh
(Regulation of Urban Premises) Tenancy
Act, 2021 (U.P. Act No. 16 of 2021) had
come into effect and the U.P. Act No. 13 of
1972 had been repealed the release
application registered as PA Case No. 6 of
2021 was not maintainable and no relief
could be granted to the landlady/respondent
under the U.P. Act No. 13 of 1972. The
Prescribed Authority accordingly dismissed
the release application vide judgment and
order dated 5.3.2022. Aggrieved by the
dismissal of the release application as non
maintainable,
the
respondent/landlady
preferred an appeal under Section 22 of the
U.P. Act No. 13 of 1972 which has been
allowed by the impugned order dated
23.5.2023, the order of the Prescribed
Authority dated 5.3.2022 has been set aside
and the matter has been remanded back for
consideration of the release application,
afresh.

4. Shri Abu Bakht, learned counsel
for the tenant/petitioners submits that the
order of the learned District Judge,
Saharanpur in allowing the rent appeal by
the order dated 23.5.2023 is patently
erroneous and is liable to be set aside
inasmuch as the release application under
Section 21 (1) (a) of the U.P. Act No. 13 of
1972
filed
on
22.1.2021
was
not
maintainable as U.P. Act No. 16 of 2021
had come into effect from January 11, 2021
as provided under Section 1 (4) of U.P. Act
No. 16 of 2021. It is further contended that
sub section 1 of Section 46 of the U.P. Act
No. 16 of 2021 provides that the U.P. Act
No. 13 of 1972 and the Uttar Pradesh
Regulation of Urban Premises Tenancy
(Second)
Ordinance,
2021
and
U.P.
Ordinance No. 3 of 2021 stand repealed.

5. Shri Komal Mehrotra, learned
counsel for the landlady/respondent, on the
other hand, submits that the proceedings of
U.P. Act No. 13 of 1972 under which Act
the release application under Section 21 (1)
(a) was preferred was very much in force
inasmuch as U.P. Act No. 16 of 2021 has
been made operative with retrospective
effect from 11.1.2021. Earlier, the Uttar
Pradesh Regulation of Urban Premises
Tenancy Ordinance, 2021 (U.P. Ordinance
No.2 of 2021) was operative. However, it
lapsed on 31.2.2021. Consequently, the
provisions of U.P. Act No. 13 of 1972
revived and in such view of the matter, the
Appellate Court was justified in treating the
proceedings initiated under the U.P. Act
No. 13 of 1972 to be maintainable. He
further submits that Section 46 (2) of the
U.P. Act No. 16 of 2021 which relates to
repeal and savings provides that all cases
and other proceedings under the U.P. Act
612 INDIAN LAW REPORTS ALLAHABAD SERIES
No.
13
of
1972
pending
at
the
commencement of this Act shall be
continued and disposed of in accordance
with the provisions of the said Act as if that
Act had continued to be in force and the
U.P. Act No. 16 of 2021 had not been
enacted. He, thus, contends that the release
application filed on 22.1.2021 would be
deemed
to
be
pending
on
the
commencement of the U.P. Act No. 16 of
2021 which has been made retrospective in
operation w.e.f. 11.1.2021. It has further
been argued by Shri Komal Mehrotra,
learned counsel for the respondent that the
U.P. Act No. 16 of 2021 contemplates
existence of a tenancy agreement between
the parties as is evident from Section 38 (2)
of the U.P. Act No. 16 of 2021 and in the
absence of any tenancy agreement between
the parties the provisions of the Act No. 16
of 2021 would not be applicable.

6. Learned counsel for the petitioners
in rejoinder submits that on 22.1.2021 i.e.
the day on which the release application
was admittedly filed, the U.P. Ordinance
No. 3 of 2021 was very much in force and
as such, the appropriate action against the
petitioners ought to have been taken under
the Ordinance No. 3 of 2021 as provided
under Section 46 (4) of the U.P. Act No. 16
of 2021. It is further contended that the
U.P. Ordinance No. 2 of 2021 was
promulgated by the Governor on January 9,
2021. Due to the sudden adjournment of
the first session of 2021 of the State
Legislature on March 4, 2021, proceedings
of which was determined from February
18, 2021 to March 10, 2021 replacing Bill
of the said Ordinance could not be passed
by the House of the State Legislature.
Consequently, the Ordinance No. 2 of 2021
promulgated on January 9, 2021 lapsed on
March 31, 2021 as the replacing Bill
therefore could not be enacted within 06
weeks
of
reassembly
of
the
State
Legislature as required under Article 213 of
the Constitution. After the lapse of the
Ordinance No. 2 of 2021, it was decided to
bring a new tenancy law to keep the
provisions of the Ordinance No. 2 of 2021
in force even after March 31, 2021 to
establish
Rent
Authority
and
Rent
Tribunals to regulate the renting of
premises, to protect the interests of
landladys and tenants and to provide
speedy
adjudication
mechanism
for
resolution of disputes. Since, the State
Legislature was not in session, the U.P.
Ordinance No. 3 of 2021 was promulgated
on
April
9,
2021.
The
Bill
was
subsequently presented and the U.P. Act
No. 16 of 2021 was enacted w.e.f.
11.1.2021.

7. Learned counsel for the petitioners
further contends that though the U.P. Act
No. 16 of 2021 contemplates on existence
of a tenancy agreement between the parties,
the sub Section (3) (b) of Section 4 of the
Act deals with a situation wherein no
agreement in writing is found to have been
entered between the landlady and the
tenant. In such an event, a tenancy
agreement shall be entered into by the
landlady and tenant and present the same
before the Rent Authority within 03 months
of the commencement of the Act. The
proviso to the said section provides that
where the landlady or tenant fails to present
jointly a copy of the tenancy agreement or
fail to reach an agreement within specified
period, the landlady and tenant shall
separately file the particulars about such
tenancy with the Rent Authority within one
month from the date of expiry of the period
mentioned in Clause (b) in the form
specified in First Schedule of the Act. The
landlady/respondent did not discharge this
burden.
2 All. Mohd. Ikram & Anr. Vs. Smt. Shamshana
613

8. I have heard the learned counsel for
the parties and have perused the record.

9.

The
moot
question
for
consideration by this Court is as to whether
the U. P. Act No. 13 of 1972 stood
repealed by virtue of the Ordinance No. 2
of 2021 or Ordinance No. 3 of 2021 so as
to render the application under Section
21(1)(a) of the U.P. Act No. 13 of 1972
non maintainable.

10. Before this Court dwells into the
above aspect, it would be apt to understand
the significance of an Ordinance. Article
213 of the Constitution of India confers
power to the Governor to promulgate
Ordinances during recess of Legislature.
An Ordinance promulgated under Article
213 of the Constitution of India shall have
the same force and effect as an Act of the
Legislature of the State assented by the
Governor. An Ordinance must be changed
over into law within six weeks of the
reassembly of the Legislature or it will
lapse. Once an Ordinance lapses the law
brought in the system ceases to operate and
will not be treated as legal law anymore.
An Ordinance can be re-promulated just
thrice. The consequence of lapse of an
Ordinance in cases where these existed an
old law which was over ridden by the
Ordinance then it will again become the
valid piece of law. A Seven Judges Bench
of the Apex Court in the case of Krishna
Kumar Singh Vs. State of Bihar
reported in 2017 (3) SCC 1 while
dealing with various aspects regarding
promulgation of an Ordinance amongst
other issues held that an Ordinance
which has ceased to operate is not void.
As an instrument it is not still born.
During the tenure of the Ordinance it
has the same force and effect as a law
enacted by the Legislature.

11. Now coming to the case at hand,
the Court finds that the U.P. Ordinance No.
2 of 2021 was promulgated on 11th June,
2021. Under the said Ordinance the U.P.
Act No. 13 of 1972 was repealed. The
release application dated 22.01.2021 was
filed when the U.P. Ordinance No. 2 of
2021 was very much in force. The release
application under the U.P. Act No. 13 of
1972 was certainly not maintainable as the
Act stood repealed. The subsequent lapse
of the Ordinance No. 2 of 2021 would be of
no significance inasmuch as the U.P.
Ordinance No. 3 of 2021 was promulgated
on 9th April, 2021 w.e.f. 11.01.2021. There
is no merit in the submission of Sri Komal
Mehrotra,
learned
counsel
for
the
respondent that the release application
would be deemed to be pending on the date
of the enforcement of the U.P. Act No.16
of 2021. The entire proceedings under the
U.P. Act No. 13 of 1972 are without
jurisdiction.
The
learned
Prescribed
Authority was justified in rejecting the
release application under Section 21(1)(a)
of the U.P. Act No. 13 of 1972, as not
maintainable. The Appellate Authority
appears to have been misguided by the fact
that the landlady/respondent had served a
Notice dated 1.7.2020 terminating the
tenancy of the petitioners and as such, had
already initiated the proceedings for
eviction of the petitioners from the tenanted
premises and, therefore, stood covered by
the provisions of Section 46 (2) of the U.P.
Act No. 16 of 2021. The Court is afraid that
such erroneous assumption by the learned
Appellate Authority cannot be sustained
inasmuch as there is no legal requirement
of issuing a notice for filing a release
application under Section 21 (1) (a) of the
U.P. Act No. 13 of 1972 except when a
release application is filed within three
years of purchase of the tenanted premises
from the erstwhile landlord/owner, which is
614 INDIAN LAW REPORTS ALLAHABAD SERIES
not the case at hand. The requirement is
only when filing a suit under Section 20 of
the Act. In the absence of any proceedings
initiated by the landlady/respondent under
Section 21 (1) (a) prior to enforcement of
the U.P. Act No. 16 of 2021 or the U.P.
Ordinance No. 2 of 2021, the findings
recorded by the Appellate Authority cannot
be sustained. The Appellate Authority in
Rent Appeal committed manifest error of
law in setting aside the order of the
Prescribed Authority and directing fresh
consideration of the release application
under Section 21(1)(a).

12. For the reasons recorded above,
the writ petition is allowed. The impugned
order dated 23.05.2023 passed by the
learned District Judge, Saharanpur in Rent
Appeal No.125 of 2022 is set aside. The
order of the Prescribed Authority dated
5.3.2022 passed in PA Case No.6 of 2021
is sustained.

13. Parties to bear their own costs.
----------
(2024) 2 ILRA 614
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 61632 of 2013

Pramod Kumar Paswan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar, Sri Adya Prasad Tewari,
Sri Manish Kumar Nigam, Sri Munna Tiwari,
Sri Sheo Shankar Tripathi

Counsel for the Respondents:
C.S.C., Sri A.K. Tiwari, Sri Ashok Kumar
Tiwari

Service Law - Intermediate Education Act,
1921 - Regulation 31 - Disciplinary
Proceedings - Termination of Class IV
Employee - Petitioner challenged termination
order dated 23.10.2013 and enquiry report
dated
29.06.2013
-
Held,
disciplinary
proceedings flawed due to non-compliance with
principles of natural justice - No evidence of
oral enquiry conducted despite petitioner's
denial of charges, as required per Sahabuddin
Ansari Vs St. of U.P. and St. of U.P. Vs T.P. Lal
Srivastava - Enquiry report silent on fixing date,
time, or place for oral enquiry or petitioner's
participation, rendering it unsustainable - No
proof that enquiry report was supplied with
show-cause
notice,
denying
petitioner
opportunity to defend, violating Managing
Director, ECIL Vs B. Karunakar - Second showcause
notice
mandatory
in
disciplinary
proceedings - Allegation of biased Enquiry
Committee (inclusion of Manager's son and
complainant clerk) not sustainable, as petitioner
did not object during proceedings - Termination
order
by
Principal,
not
Committee
of
Management, upheld as per Regulation 31, but
procedural
lapses
invalidate
enquiry
and
termination - Enquiry report and termination
order
quashed,
respondents
permitted
to
proceed afresh in accordance with law. (Para
11-19)

Writ petition allowed.

List of Cases Cited:

1. Sahabuddin Ansari Vs St. of U.P.; 2008 (4)
ADJ 158

2. St. of U.P. Vs T.P. Lal Srivastava; 1997 (1)
LLJ 831

3. Managing Director, ECIL Vs B. Karunakar;
(1993) 4 SCC 727

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

1. Heard Sri Adya Prasad Tewari,
learned counsel for the petitioner, Sri