# Rajendra Kumar & Ors v. Raj Kumar

- **Citation:** (2020) 6 ILRA 895
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-26
- **Case number:** WRIT A No. 18711 of 2019
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-kumar-ors-v-raj-kumar-45821
- **Pages:** 8

## Headnote

Sri Arpit Agarwal

A. Practice & Procedure - Release
Application
-
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent
and
Eviction)
Act,
1972:
Section
21(1)(a), (b) - The Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent
and Eviction) Rules, 1972: Rule 17 - The
landlord is not required to establish his
financial capacity to reconstruct the building if
the release is sought on the ground that the
building is bonafide required after demolition
and new construction for use and occupation
of the landlord. However, if the tenant
disputes the financial capacity of the landlord
to reconstruct the building, the tenant ha to
plead in the written statement challenging the
financial capacity of the landlord and prove it
with by leading cogent evidence. (Para 19, 20)
The landlord in a proceeding under Section
21(a) of the Act has to establish that his need
is bonafide and genuine, and that comparative
hardship lay in his favour, once he satisfies
these conditions, release application deserved
to be allowed even if the release of the
building is sought on the ground that building
is bonafide required for use and occupation
after demolition and reconstruction. (Para 19)

Writ Petition rejected. (E-10)

List of cases cited: -

## Text

6 All. Rajendra Kumar & Ors. Vs. Raj Kumar 895
in MBBS Course. Therefore, the said
decision is of no help to the petitioner
herein. The present case pertains to the
service matter, which, even as per the
decision in Anmol Deep (supra), has to be
strictly applied with the definition of the
Act of 1993.

20. In view of the aforesaid facts
and circumstances of the case, the
petitioner has failed to file the certificate
of dependent of freedom fighter as per the
clause 7(2)(ga)(4) of the advertisement in
question. Therefore, no interference is
called for under Article 226 of the
Constitution of India.

21. The writ petition is devoid of
merits and it is, accordingly, dismissed.
----------
(2020)06ILR A895
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2020

BEFORE
THE HON'BLE SARAL SRIVASTAVA, J.

WRIT A No. 18711 of 2019

Rajendra Kumar & Ors. ...Petitioners
Versus
Raj Kumar ...Respondent

Counsel for the Petitioners:
Sri Manish Kumar Nigam

Counsel for the Respondent:
Sri Arpit Agarwal

A. Practice & Procedure - Release
Application
-
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent
and
Eviction)
Act,
1972:
Section
21(1)(a), (b) - The Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent
and Eviction) Rules, 1972: Rule 17 - The
landlord is not required to establish his
financial capacity to reconstruct the building if
the release is sought on the ground that the
building is bonafide required after demolition
and new construction for use and occupation
of the landlord. However, if the tenant
disputes the financial capacity of the landlord
to reconstruct the building, the tenant ha to
plead in the written statement challenging the
financial capacity of the landlord and prove it
with by leading cogent evidence. (Para 19, 20)
The landlord in a proceeding under Section
21(a) of the Act has to establish that his need
is bonafide and genuine, and that comparative
hardship lay in his favour, once he satisfies
these conditions, release application deserved
to be allowed even if the release of the
building is sought on the ground that building
is bonafide required for use and occupation
after demolition and reconstruction. (Para 19)

Writ Petition rejected. (E-10)

List of cases cited: -

1. K.N. Anantharaja Gupta Vs. D.V. Vijaykumar
(smt) 2007 (13) SCC 592 (distinguished)

2. Shree Krishan Garg Vs. Rajendra Singh and
ors. 2003 (51) ALR 209

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

1. Heard learned Sri Manish Kumar
Nigam, counsel for the petitioner and Sri
Arpit
Agrawal,
Counsel
for
the
respondent.

2. Petitioners by means of present
writ
petition
have
challenged
the
judgement and order dated 31.1.2017
passed
by
Civil
Judge
(Senior
Division)/Prescribed Authority, Pilibhit
allowing the P.A. Case No. 18 of 2014
(Raj Kumar Vs. Yashwant Singh and
another) and the judgement and order
dated
24.9.2019
passed
by
Third
Additional District & Sessions Judge,
Pilibhit dismissing the P.A. Appeal No. 5
of 2017 (Yashwant Singh (deceased) and
896 INDIAN LAW REPORTS ALLAHABAD SERIES
others Vs. Raj Kumar) filed by the
petitioners
against
the
order
dated
31.1.2017.

3. Facts, in brief, are that the
respondent-landlord (hereinafter referred
as 'respondent') filed a release application
under Section 21 (1) (a) of Uttar Pradesh
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (hereinafter
referred as 'U.P.Act No. 13 of 1972' ) for
release of a shop (hereinafter referred as
'disputed shop') situated in Mohalla
Khushimal opposite Chhipiyan Masjid,
Station Road, Pilibhit against petitionerstenant
(hereinafter
referred
as
'petitioners'). The need set up by the
respondent was that the disputed shop is
required for setting up a mobile phone
shop
and
its
accessories
for
the
respondent and his son. It is further
averred that the respondent has taken a
shop on rent at Rs.1260/- per month for
doing business opposite the disputed shop
in the market of Jaiveer Singh Parmar. It
is further averred that the release of the
disputed shop would satisfy the need of
the respondent and his son.

4. The release application was
contested by the petitioners by filing
written statement denying the fact that the
disputed shop is bonafide required by the
respondent for establishing the business
for himself and his son. Besides above
several other pleas were taken by the
petitioners in their objection against the
release application.

5. The Trial Court framed as many
as three issues. Issue No. 1 was in respect
to the relationship between the respondent
and the petitioners as landlord and tenant.
The issue No. 2 was in respect of
bonafide need of the respondent, and
Issue No. 3 was in respect of comparative
hardship.

6. The Trial Court by placing
reliance upon paragraph No. 7 of the
written statement admitting the tenancy of
the disputed shop held that there was a
relationship
of
landlord
and
tenant
between
the
petitioners
and
the
respondent.
The
trial
court
after
appreciating elaborately the evidence on
record found that the respondent has
established that he is doing business in a
rented shop and his son is unemployed,
therefore, the need of the respondent is
bonafide and genuine and comparative
hardship lay in his favour . Consequently,
it allowed the release application.

7. The order of the Trial Court dated
31.1.2017 was assailed by the petitioners
in appeal. The Appellate Court found no
illegality in the order of the Prescribed
Authority
in
allowing
the
release
application. Consequently, it dismissed
the appeal.

8. Challenging the aforesaid order,
the only submission urged by the counsel
for the petitioners is that the case of the
respondent in the release application was
that the disputed shop is bonafide
required
by
the
respondent
for
establishing the business for himself and
his son after reconstruction, therefore, the
authority below should have considered
the financial capacity of the respondent to
reconstruct the disputed shop. Thus, he
submits that in the absence of any
satisfaction recorded by the authorities
below that the respondent has the
financial capacity to reconstruct the shop,
the authorities below have committed a
manifest error of law in allowing the
release application. In support of his
6 All. Rajendra Kumar & Ors. Vs. Raj Kumar 897
submission, he has placed reliance upon
the judgement of Apex Court in the case
of K.N. Anantharaja Gupta Vs. D.V.
Usha Vijaykumar (smt), 2007 (13) SCC
592.

9. Per contra, learned counsel for the
respondent submits that the issue whether
the respondent has the financial capacity
to reconstruct the disputed shop is a
question of fact, determination of which
requires necessary pleading and cogent
evidence to prove the said fact. Thus, he
submits that in the absence of any
pleading
in
the
written
statement
challenging the financial capacity of the
respondent to reconstruct the shop, the
said issue cannot be raised for the first
time before this court in the writ petition.
He further contends that averment in the
release application should be read as a
whole and not in isolation to ascertain on
what ground release of the shop has been
sought, and in the instant case, from the
reading of release application as a whole,
it is crystal clear that the release of the
disputed shop has been sought on the
ground of the bonafide need of the
respondent and not that the business shall
be established after the demolition and
reconstruction of the shop.

10. He further contends that in a
release application filed under Section 21
(1) (a) of the U.P. Act No. 13 of 1972, the
landlord has to establish that his need for
release is bonafide and comparative
hardship lay in his favour. Thus, he urges
that if the landlord established these two
essential ingredients of Section 21 (1) (a)
of U.P. Act No. 13 of 1972, the release
application deserves to be allowed. He
submits that the Court below after
appreciating the shreds of evidence on
record held that the need of the
respondent is genuine and bonafide, and
comparative hardship also lay in favour of
respondent, accordingly it allowed the
release
application.
He
has
placed
reliance upon the judgement of this Court
in the case of Shree Krishan Garg Vs.
Rajendra Singh and other, 2003 (51) ALR
209.

11. I have heard the rival
submission of learned counsel for the
parties and perused the record.

12. The question which arises in the
present case is whether, in a proceeding
under Section 21 (1) (a) of U.P. Act No.
13 of 1972, the authorities below are
under obligation to consider about the
financial capacity of the landlord to
reconstruct
the
disputed
shop
after
demolition.

13. Before adverting to the
aforesaid question, it would be relevant
to reproduce paragraph No. 2 of the
release application which has been
relied upon by the counsel for the
petitioners in support of his submission.
Paragraph
No.
2
of
the
release
application reads as under:-

"2. यह है तक तििातिि िुकान
कािी पुरानी बनी हुई है. प्राथी को
तििातिि िुकान तक स्वयं ि अपने पुत्र
पराग अग्रिाल के तलए व्यिसाय हेिु
आिश्यकिा है िथा प्राथी िुकान का
नितनिागण कराकर उसिे स्वयं ि अपने
पुत्र के साथ िोबाइल ि उसके उपकरणो ि
अन्य साितग्र के तिक्रय करने का
व्यिसाय करना चाहिा है. "
898 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Counsel for the petitioners has
emphasized the word "नितनिागण" (new
construction) in paragraph No. 2 of the
release application to contend that use of
the word "नितनिागण" shows that the
release of the disputed shop has been
sought on the ground that the disputed
shop
is
bonfiedly
required
after
demolition and new construction for use
and
occupation
of
the
respondent,
otherwise there was no reason for use of
the word "नितनिागण" in paragraph no. 2 of
the
release
application.
Thus,
his
submission is that the authorities below
needed to record its satisfaction about the
financial capacity of the landlord to
reconstruct
the
disputed
shop
after
demolition
in
allowing
the
release
application. Accordingly, he submits that
this issue can be raised before this court
in the writ petition as it goes to the root of
the matter and is a question of law. He
has placer reliance upon paragraph Nos.
10 and 11 of the judgement of the Apex
Court in the case of K.N. Anantharaja
Gupta (supra) which is extracted herein
below:-

"10. That apart, there is another
aspect
of
this
matter.
As
noted
hereinabove, the eviction of the tenant
was sought under Section 27(2)(r) of the
Act by alleging that the suit premises was
required by the respondent and her
children for their own use and occupation
after demolition and reconstruction of the
building already existing. In order to
satisfy this condition, as enumerated in
Section 27(2)(r) of the Act, it is essential
that the court should also find that the
premises let needs to be demolished and
that the same would be reconstructed
after demolition. It is only after this that
the question of user of the same after
reconstruction would be taken into
consideration.

11. From the order of the High
Court passed in revision, it would be
evident that the only ground on which the
order of the Chief Judge, Small Causes
Court, Bangalore was reversed was that
the respondent needed the suit premises
to demolish the same and to take up new
construction and obtain plans from the
authority. In our view, before granting a
decree for eviction on the ground of
demolition and reconstruction and then
for use of the same for occupation, the
court must be satisfied that: -

(i) the suit premises is so
dilapidated that it needs demolition;

(ii)
the
landlord
has
the
capacity to reconstruct the suit premises
after demolition;

(iii) the sanctioned plan has to
be taken from the authority concerned."

15. To test the argument of counsel
for the petitioners, it would be useful to
refer Section 21 (1)(a) and (b) of the U.P.
Act No. 13 of 1972 which reads as under:

"21. Proceeding 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
6 All. Rajendra Kumar & Ors. Vs. Raj Kumar 899
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....."

16. Under Section 21 (1) (a) of the
U.P. Act No. 13 of 1972, a landlord can
file a release application for release of a
building where a building is bonafide
required either (i) in existing form or (ii)
after demolition and new construction by
the landlord for occupation.

17. According to the counsel for the
petitioners, reading of paragraph no.2 of
the release application unambiguously
suggest the intention of the landlord to
use the disputed shop after demolition and
reconstruction, therefore, the landlord
needs to establish that he has sufficient
means to reconstruct the disputed shop
after demolition to succeed in the release
of the disputed shop. Accordingly, he
submits that the authorities below were
under obligation to record its satisfaction
about the financial capacity of the
landlord to reconstruct the disputed shop
before allowing the release application.

18. At this point, it is pertinent to
have a glance at Section 21(b) of the U.P.
Act No. 13 of 1972 which provides that
the landlord can file release application
under Section 21(b) if the building is in
dilapidated condition and is required for
demolition and new construction. The
building can be released under Section
21(b) if the conditions stipulated in Rule
17 of The Uttar Pradesh Urban Buildings
(Regulation
of
Letting,
Rent
and
Eviction),
Rules
1972
(hereinafter
referred to as 'Rules, 1972') are satisfied.
Rule 17 of Rule 1972 reads as under:-

"17. Application for release on
the ground far demolition and new
construction [Sections 21 (1) (b) and 34
(8).-- 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."

19. The state government has
framed Rules 1972 in the exercise of
power under Section 41 of U.P. Act No.
13 of 1972 to carry out the purpose of the
U.P. Act No. 13 of 1972 . Rule 17 of
Rule, 1972 has been framed with
reference to Section 21(b) of U.P. Act No.
13 of 1972. One of the conditions beside
other conditions stipulated in Rule 17 of
Rules 1972 which the landlord should
satisfy in order to succeed under Section
900 INDIAN LAW REPORTS ALLAHABAD SERIES
21 (b) is that he has the financial capacity
for
the
proposed
demolition
and
reconstruction. If the landlord failed to
satisfy the condition stipulated in Rule
17(iv) of the Rules 1972, his application
would fail. However, it would be
pertinent to notice that the legislature has
not framed any rule like Rule 17 with
reference to Section 21 (a) of U.P. Act
No. 13 of 1972 laying down the condition
which the landlord has to satisfy to
succeed in a proceeding initiated by him
under Section 21 (1) (a) of U.P. Act No.
13 of 1972. Thus, it is evident that the
landlord is not required to establish his
financial capacity to reconstruct the
building if the release is sought on the
ground that the building is bonafide
required
after
demolition
and
new
construction for use and occupation of the
landlord. The landlord in a proceeding
under Section 21(a) of the U.P. Act No.
13 of 1972 has to establish that his need is
bonafide
and
genuine,
and
that
comparative hardship lay in his favour,
once he satisfies these conditions, release
application deserved to be allowed even if
the release of the building is sought on the
ground that building is bonafide required
for use and occupation after demolition
and reconstruction.

20. However, if the tenant disputes
the financial capacity of the landlord to
reconstruct the building, the tenant has to
plead in the written statement challenging
the financial capacity of the landlord and
prove it by leading cogent evidence, and
in case of any such plea having been
raised by tenant, the Prescribed Authority
may incidentally examine the question of
financial capacity of the landlord to carry
out the demolition and new construction.
It would be worth to refer to the judgment
of this Court in the case of Shree
Krishan Garg (supra). Paragraph Nos.
54, 55 and 56 reads as under:-

"54. It is true that under clause
(a) of Sub-section (1) of Section 21 of the
Act also, the landlord may seek release on
the ground that the building in question is
bona fide required "after demolition and
new construction". However, in such a
case, in my opinion, Rule 17 of the Rules
framed under the Act cannot be invoked.
In other words, where the landlord files
release
application
under
Section
21(1)(a) on the ground that the building
in question is bona fide required "after
demolition and new construction", he will
not be required to establish that the
requirements of Rule 17 of the Rules
framed under the Act are fulfilled.

55. However, if in such a case,
i.e., where the landlord files release
application under Section 21(1) (a) on the
ground that the building in question is
bona fide required "after demolition and
new construction", the tenant disputes the
bona fide requirement of the landlord on
the ground that the landlord lacks the
financial
capacity
to
carry
out
"demolition and new construction", then
the Prescribed Authority, in deciding the
question
of
bona
fide
need,
may
incidentally examine the question of
financial capacity of the landlord to carry
out "demolition and new construction".

56. Coming to the present case,
it has not been shown that the tenant /
petitioner raised any dispute / issue
regarding financial capacity of the
landlord
to
make
alterations
and
additions in the disputed shop. Therefore,
it was not necessary for the authorities
below to consider the question of
financial capacity of the landlord while
6 All. Rajendra Kumar & Ors. Vs. Raj Kumar 901
deciding the question of bona fide
requirement. "

21. In the case in hand, counsel for
the petitioners has not been able to place
any averment in the written statement
challenging the financial capacity of the
respondent to reconstruct the shop nor he
could place any material on record to
support his contention that the respondent
lacks the financial capacity to reconstruct
the disputed shop.

22. Further, the intention of the
respondent on which ground the release
of the disputed shop has been sought
cannot be gathered from one word
"नितनिागण" in paragraph No. 2 of the
release application, rather the release
application has to be read as a whole to
find out the ground on which release
application has been filed. In the present
case, reading of release application as a
whole does not suggest that the release
application
has
been
filed
by
the
respondent on the ground that the
disputed shop is bonafide required for use
and occupation after demolition and new
construction.

23. If the petitioner had doubts
about the financial capacity of the
respondent to reconstruct the disputed
shop, he should have challenged it by
raising necessary pleading in the written
statement and prove the same by filing
cogent evidence. That would also give an
opportunity to the respondent to negate
the apprehension of the petitioner.

24. The matter can also be looked
into from another point of view. In the
instant case, respondent has laid emphasis
on the word "नितनिागण" in paragraph No.
2 to challenge the financial capacity of
the petitioner to reconstruct the shop.
There is no averment in the release
application that the shop is required after
demolition and new construction by the
respondent for occupation. Possibly the
word "नितनिागण" has been used in the
release application in the context that
modification or renovation of the disputed
shop is needed without demolition to give
it a nice look to attract the customers. If
the respondent had raised necessary
pleading in the written statement in this
regard, that would have enabled the
petitioner to explain the circumstances
and reason for use of word "नितनिागण" in
the release application and to prove his
financial
capacity
to
carry
out
modification or renovation in the disputed
shop. In this view of the matter, the court
is of the opinion that the issue of financial
capacity to reconstruct the shop is an
issue of fact, determination of which
requires necessary pleading and evidence
to prove the same, and thus, cannot be
raised for the first time in the writ
petition.

25. The judgement of the Apex
Court in K.N. Anantharaja Gupta
(supra) relied upon by counsel for the
petitioners is of no help to the petitioners
for two reasons; in the case of K.N.
Anantharaja Gupta, the building was
sought to be released on the ground that
the building was bonafide needed for use
and occupation after demolition and
construction whereas in the case in hand,
no such case has been set up by the
respondent in the release application that
disputed shop is bonafide required for use
and occupation after demolition and new
construction. Secondly, the Apex Court
was considering a dispute which arose out
of a proceeding of Karnataka Rent Act
and not under U.P.Act No. 13 of 1972
902 INDIAN LAW REPORTS ALLAHABAD SERIES
where the release of building sought
under Section 21(b) of the Act,1972
requires the landlord to satisfy the
conditions enumerated in Rule 17 of
Rules 1972, but not in a case where the
release is sought under Section 21(a) of
the Act,1972 on the ground of bonafide
need. Thus, the judgment of the Apex
Court in the case of K.N. Anantharaja
Gupta had been rendered in a different
factual context and not applicable in the
facts of the present case.

26. Thus, this court is of the view
that as the petitioners have not challenged
the financial capacity of the respondent
before the authorities below, the same
cannot be allowed to be raised for the first
time in the writ petition.

27. For the reasons given above, this
Court does not find any illegality in the
orders impugned in this writ petition. The
writ
petition
lacks
merit
and
is
accordingly, dismissed with no order as
to the cost. Interim order stands vacated.
----------
(2020)06ILR A902
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2020

BEFORE
THE HON'BLE SARAL SRIVASTAVA, J.

WRIT A No. 21055 of 2019

Suneet Kumar ...Petitioner
Versus

Krishna Kumar Agarwal ...Respondent

Counsel for the Petitioner:
Sri Divakar Rai Sharma, Sri P.K.Jain

Counsel for the Respondent:
Sri Anil Kumar Rai, Sri Pankaj Agarwal, Sri
Vishnu Singh.

Civil
Law
-
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972: Section 21(1)(a)
- Merely a family settlement had taken
place that would not raise a presumption
of it being collusive and tenant cannot
prevent the family members of the
landlord to partition their property.
However, there is an exception to the
aforesaid proposition that
if the family
settlement is a device to avoid rent control law
or frustrate the defence of tenant available to
him in rent control laws, he can raise objection
in this regard in pleading and prove it by filing
evidence. (Para 23)
The Court found it evident from the shreds of
evidence on record that the property on which
godown exist was jointly purchased by the
respondent and his three brothers. The
respondent became the exclusive owner of the
godown on the basis of family settlement and
no member of the respondent's family has
claim over the godown is manifest from the
joint affidavit of brothers. It was further noted
that the petitioner in the written statement
had failed to establish that the family
settlement was collusive and was a device to
avoid rent control laws which give protection
to the tenant from eviction except on the
ground specified in the relevant statute nor
there was any evidence on record which
demonstrates that family settlement was a
sham transaction entered with a purpose to
overcome the rent control laws. (Para 19)
It is a settled law that co-owner can
maintain a suit (release application) for
eviction against a tenant and the tenant
cannot
raise
an
objection
to
its
maintainability. (Para 25,28)
Writ Petition Rejected. (E-10)

List of cases cited:-

1. Raj Vardhan Khandoori (Sri.) Vs. Additional
District Judge 2003 (2) ARC 575