# Sanjay Bhardwaj @ Bablu And Anr v. Dinesh Chandra Gupta And Others

- **Citation:** (2019) 1 ILRA 976
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-23
- **Bench:** Dr.Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-bhardwaj-bablu-and-anr-v-dinesh-chandra-gupta-and-others-44512
- **Pages:** 23

## Headnote

Letting, Rent and Eviction) Act, 1972.
Interpretation - A statute is best interpreted
when we know why it was enacted. "Original
tenant" u/s 24(2) would be "evicted tenant",
evicted u/s 21(1)(b)-rule of heritability
extends to statutory tenancy of commercial
premises as much as residential premises.

During the pendency of application u/s 24(2),
the original tenant died. Substitution of legal
heirs allowed. Recall application was dismissed
and review was rejected. Dismissing the
petitioner-landlord's present petition, the High
Court. The words used in an enactment should
be construed in a way which best gives effect
to the purpose of the enactment. The
provisions of S.24(2) and S.21 (1) (b) are
required to be read conjointly. Proceedings u/s
24(2) are a continuation of the proceedings
u/s 21(1)(b). As a logical corollary S.34(4)
would be applicable to proceedings u/s 24(2).
(Para 53, 54, 55, 56, 57)

B. The right of re-entry u/s 24(2) is to be
seen as a statutory right flowing from
the legislative mandate. (Para 59)

Precedent followed: -

1.Ashish Kumar Vs. Additional District Judge,
Ayodhya Prakaran, Lucknow, 2010 (3) ARC
238 (Para 12, 31)
1 All. Sanjay Bhardwaj @ Bablu And Anr. Vs. Dinesh Chandra Gupta And Others
977

## Text

_Characters 0–39,735 of 77,044. This is a partial read: ask again with offset=39735 for what follows._

976 INDIAN LAW REPORTS ALLAHABAD SERIES
it has been held in Surya Dev Rai (Supra)
that the jurisdiction was not available to
be exercised for indulging into re-
appreciation or evaluation of evidence or
correcting
the
errors
in
drawing
inferences like a court of appeal.

(vi) The tenant-petitioner has not
disputed the fact even before this Court
that the landlord-respondents have offered
him a shop on the ground-floor for
vacating the disputed shop and that the
commercial complex as per sanctioned
map has already been constructed by the
landlord-respondents over the land in
question and the only shop is of the
petitioner which obstructed the front
portion
of
the
newly
constructed
commercial
complex.
Under
the
circumstances, the bonafide need of the
landlord-respondents stands proved under
Section 21(1)(a) of U.P. Act 13 of 1972.
Under the circumstances, the conduct of
the tenant-petitioner in not vacating the
shop, cannot be appreciated, inasmuch as
he is the only tenant, who is obstructing
better beneficial use of the commercial
complex by the landlord-respondents.

(viii)
Under
the
facts
and
circumstances of the case, the findings of
both the courts below with regard to bonafide
need of the plaintiff-landlord/respondents
cannot be said to suffer from any legal
infirmity. The findings recorded by the
courts below are findings of fact, which are
based on relevant evidences on record.

29- For all the reasons aforestated,
this writ petition is dismissed with cost of
Rs.5,000/-.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2019

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

Writ A(Rent Control) 5646 of 2019

Sanjay Bhardwaj @ Bablu And Anr.
 ...Petitioners
Versus
Dinesh Chandra Gupta And Others
 ...Respondents

Counsel for the Petitioners:
Sri Rahul Sahai

Counsel for the Respondents:
Sri Kshitij Shailendra

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972.
Interpretation - A statute is best interpreted
when we know why it was enacted. "Original
tenant" u/s 24(2) would be "evicted tenant",
evicted u/s 21(1)(b)-rule of heritability
extends to statutory tenancy of commercial
premises as much as residential premises.

During the pendency of application u/s 24(2),
the original tenant died. Substitution of legal
heirs allowed. Recall application was dismissed
and review was rejected. Dismissing the
petitioner-landlord's present petition, the High
Court. The words used in an enactment should
be construed in a way which best gives effect
to the purpose of the enactment. The
provisions of S.24(2) and S.21 (1) (b) are
required to be read conjointly. Proceedings u/s
24(2) are a continuation of the proceedings
u/s 21(1)(b). As a logical corollary S.34(4)
would be applicable to proceedings u/s 24(2).
(Para 53, 54, 55, 56, 57)

B. The right of re-entry u/s 24(2) is to be
seen as a statutory right flowing from
the legislative mandate. (Para 59)

Precedent followed: -

1.Ashish Kumar Vs. Additional District Judge,
Ayodhya Prakaran, Lucknow, 2010 (3) ARC
238 (Para 12, 31)
1 All. Sanjay Bhardwaj @ Bablu And Anr. Vs. Dinesh Chandra Gupta And Others
977
2. Sabra Begum Vs. District Judge Meerut
&Ors., 1983 ARC 65 (Para 10, 12, 32, 33)

3. Harish Chandra(Para 12, 34, 35)

4. Ram Naresh Tripathi(Para 12, 36)

5. Gian Devi Anand Vs. (Para 37)

6. R. S. Grewal &Ors. Vs. (Para 38)

7. Bimal Kumar Garg Vs. District Judge,
Dehradun &Ors., 1979 ARC 384 (Para 40)

8. Tribhuwan Kumar Sharma Vs. Prescribed
Authority/ J.S.C.C., Meerut & 3 Ors., 2019 (4)
ADJ 790 (Para 12, 41)

9. Wasi Ahmed (Shri) Vs. 2nd Additonal District
Judge, Gorakhpur &Anr. 2005 (2) ARC 560
(Para 12, 42)

10. Karamat Ullah Vs. District Judge, Kanpur
&Ors., 2000 (2) ARC 212 (Para 42)

11. Reserve Bank of India Vs. Peerless General
Finance and Investment Co. Ltd. &Ors. (1987)
1 SCC 424 (Para 44)

12. S. Gopal Reddy Vs. State of Andhra
Pradesh, (1996) 4 SCC 596 (Para 12, 45)

13. Seaford Court Estates Ltd. Vs. Asher,
(1949) 2 All ER 155 (CA) (Para 46)

14. Prakash Kumar Alias Prakash Bhutto Vs.
State of Gujarat, (2005) 2 SCC 409
 (Para 12, 47)

15. Anwar Hasan Khan Vs. Mohd. Shafi &Ors.,
(2001) 8 SCC 540 (Para 48)

16. Union of India &Ors. Vs. Filip Tiago De
Gama of Vedem Vasco De Gama, (1990) 1
SCC 277 (Para 12, 49)

17. Towne Vs.(Para 49)

18. Lenigh Valley Coal Co. Vs. (Para 49)

19. Maxwell on Interpretation of Statutes (12th
Edition by P. St. J. Langan) (Para 50)

20. R (on the application of Quintavalle) Vs.
(Para 51)

21. Stock Vs. Frank Jones(Para 52)

Precedent distinguished: -

Smt. Ratna Prasad Vs. Additional District
Judge- VIII, Allahabad &Ors., 1978 (4) ALR
306 (Para 10, 26, 27, 29, 30, 31)
 (E-4)
(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Rahul Sahai, learned
counsel for the petitioners and Sri Kshitij
Shailendra, learned counsel appearing for
the respondents.

2. The present petition has been filed
to challenge the order dated 13.12.2018
passed
by
the
District
Magistrate/Collector, Budaun in Case
No.00912 of 2018 (Jugal Kishore Vs.
Harish Chandra) rejecting the application
dated 09.10.2018 filed by the petitioners
seeking
recall
of
the
order
dated
27.04.2018 whereby the application filed
under Rule 25 of the UP Urban Buildings
(Regulation of Letting, Rent and Eviction)
Rules, 19721 for substitution of the
respondents as legal heirs/representatives
of late Jugal Kishore had been allowed.
The petitioners have further sought to
challenge the order dated 02.03.2019
passed
by
the
District
Magistrate/Collector, Budaun in terms of
which the review application filed against
the aforementioned order has also been
rejected.

3. The brief facts pertaining to the
case are being set out herein below.

4. A release application, was filed
by the petitioner-landlord under Section
978 INDIAN LAW REPORTS ALLAHABAD SERIES
21(1)(b) of the U.P. Act No.13 of 19722,
registered as P.A. Case No.37 of 1985, in
respect of a shop situate at Ticketganj in
District Budaun on the ground that the
shop was in a dilapidated condition and
was required for purposes of demolition
and new constructions. The release
application was rejected by the Prescribed
Authority/Additional Civil Judge (Senior
Division), Budaun vide order dated
27.03.1997. Against the said order Rent
Appeal No.39 of 1997 under Section 22
was filed which was allowed by the
Additional District Judge, Court No.1,
Budaun vide order dated 31.03.2009 and
in terms thereof the tenant-respondent
was directed to vacate the shop within a
period of one month whereafter six
months'
time
was
granted
to
the
petitioner-landlord to reconstruct the shop
in dispute, thereafter the consequences as
provided for under Section 24(2) were to
follow.

5. A writ petition, Civil Misc. Writ
Petition No.23517 of 2009 was filed by
the respondent-tenant challenging the
order
dated
31.03.2009
which
was
dismissed vide order dated 21.05.2009.

6. The contention of the learned
counsel for the petitioner-landlord is that
the possession of the shop was finally
handed
over
on
05.04.2012
and
subsequent thereto new constructions
were raised.

7. The respondent-tenant moved an
application under Section 31 claiming his
right of re-entry in the premises in
question, which was allowed by the
Prescribed
Authority
on
20.03.2014
directing
the
petitioner-landlord
to
complete the new constructions within
one month and to hand over a shop to the
tenant. The landlord moved an application
before
the
District
Magistrate
on
05.05.2014 apprising him that the new
constructions had been completed. An
order dated 22.09.2015 was thereafter
passed by the Prescribed Authority
directing the Amin to ensure delivery of
possession
of
one
shop
to
the
tenant/predecessor-in-interest
of
the
contesting respondents.

8. Challenging the aforesaid order
dated 22.09.2015 an appeal under Section
22 was filed alongwith an application for
interim relief which was rejected vide
order dated 07.10.2015. The orders dated
22.09.2015 and 07.10.2015 came to be
challenged by the predecessor-in-interest
of the petitioner-landlord by filing Writ-A
No.59324 of 2015, which was allowed
vide order dated 30.10.2015 in the
following terms:-

"...The order dated 22.9.2015
passed by the Prescribed Authority, thus
cannot be sustained. The appeal filed by
the
landlord
therefore
is
of
no
consequence. The writ petition is allowed.

At this stage the learned counsel
for the respondent submits that the
respondent-tenant proposes to move an
application before the District Magistrate
within two weeks from the date of getting
the certified copy of this order.

In case such an application is
moved by the tenant within the period of
two weeks as stated above, it shall be
decided by the District Magistrate on
merits keeping in mind the provisions of
Sub-Section (2) of Section 24 of the Act
without raising any objection to the
limitation in filing of the same. An
endeavour shall be made to decide the
matter as expeditiously as possible
1 All. Sanjay Bhardwaj @ Bablu And Anr. Vs. Dinesh Chandra Gupta And Others
979
preferably within a period of six months
from the date of filing of the application."

9. Consequent to the aforesaid order
dated 30.10.2015 in terms of which the
tenant-respondent was granted liberty to
file an application under Section 24(2) of
the Act, 1972 which was to be decided
without any objection to the limitation in
filing of the same, an application dated
10.11.2015
was
filed.
During
the
pendency
of
the
aforementioned
application, the original tenant Jugal
Kishore died on 23.04.2018, and upon his
death an application under Rule 25 of the
Rules,
1972
was
moved
seeking
substitution
of
his
legal
heirs/representatives which came to be
allowed vide order dated 27.04.2018. The
petitioner-landlord
filed
a
recall
application dated 09.10.2018 which was
dismissed vide order dated 13.12.2018.
Thereafter a review was filed which has
also been rejected vide order dated
02.03.2019, and subsequently the present
writ petition has been filed.

10. Contention of the counsel for the
petitioners is that upon the demise of the
original tenant Jugal Kishore during the
pendency of the application under Section
24(2) his legal heirs/representatives can
neither be substituted nor be permitted to
pursue the application under Section
24(2) and that upon demise of the original
tenant the proceedings at his behest would
stand abated. It is sought to be argued that
the scheme of the Act No.13 of 1972 does
not contemplate that the legal heirs of the
original tenant would be allowed to
continue to pursue the application for reentry under Section 24(2) upon the
demise of the original tenant. It is
submitted that Section 34(4) of the Act,
1972 limits the filing of a substitution
application only in cases pertaining to
determination of standard rent or for
eviction, and that Rule 25 is also
exclusively relatable to Section 34(4).
Placing reliance upon the judgment of this
Court
inSmt.
Ratna
Prasad
Vs.
Additional
District
Judge-VIII,
Allahabad &Ors.3and the judgment in the
case of Smt. Sabra Begum Vs. District
Judge, Meerut &Ors.4 it has been
submitted that the right of re-entry being
personal to the original tenant would fade
away with his demise, and hence the
pending proceedings would loose their
efficacy.

11. Per contra, the counsel
appearing
for
the
respondents
has
supported
the
orders
impugned
by
submitting that the words "original
tenant" used under Section 24(2), refer to
the stage of making an application for the
purposes of re-entry, and the said words
do
not
mean
that
the
heirs/legal
representatives of the original tenant
cannot move or pursue the application. It
is submitted that the words "original
tenant" would include the heirs/legal
representatives of the deceased-tenant and
the same cannot be confined to only the
tenant whom the property was let out. It
has been argued that intention of the
legislature behind using the words "original
tenant" is to prevent an unwarranted situation
where upon a building having been released,
a stranger or a third party may enter the fray
and assert his right to get entry in a building
which has been reconstructed pursuant to
orders passed under Section 21(1)(b) of the
Act, 1972 after its release and demolition. It
has been pointed out that the "option of reentry by tenant" under Section 24 of the Act,
1972 would mean re-entry by the tenant
including his legal representatives. It has also
been submitted that in view of the definition
of "tenant" as contained under Section 3(a)
980 INDIAN LAW REPORTS ALLAHABAD SERIES
read with Section 2(11) and Section 146 of
the Civil Procedure Code5 and under Section
34(4) of the Act, 1972, the contesting
respondents are entitled to re-entry by
pursuing the application under Section 24(2)
moved by their predecessor, Jugal Kishore,
who had died only some time back on
23.04.2018.

12. It has also been submitted that
the application under Section 24(2) was
moved within the time fixed by this Court
vide order dated 30.10.2015 passed in
Writ-A No.59324 of 2015. It has been
contended that the proceedings under
Section 24(2) are not independent or
separate, but they are in continuation of
the eviction proceedings under Section
21(1)(b). Reliance has been sought to be
placed on the judgments in Ram Naresh
Tripathi Vs. 2nd Additional Civil Judge,
Kanpur &Ors.6, Smt. Sabra Begum Vs.
District Judge, Meerut &Ors.4, Harish
Chandra
Tewari
&Anr.
Vs.
2nd
Additional District Judge, Pratapgarh
&Ors.7, Tribhuwan Kumar Sharma Vs.
Prescribed Authority/J.S.C.C., Meerut &
3 Ors.8, S. Gopal Reddy Vs. State of
Andhra Pradesh9, Prakash Kumar Alias
Prakash Bhutto Vs. State of Gujarat10,
Union of India &Ors. Vs. Filip Tiago De
Gama of Vedem Vasco De Gama11,
Ashish Kumar Vs. Additional District
Judge, Ayodhya Prakaran Lucknow12
and Wasi Ahmad (Shri) Vs. 2nd
Additional District Judge, Gorakhpur
&Anr.13.

13. Heard the counsel for the parties
and perused the record.

14. The core issue which arises in
the present case is as to whether the legal
heirs and representatives of the deceased
"original tenant" are entitled to get
themselves substituted to pursue the
application moved by the original tenant
seeking re-entry under Section 24(2) of
the Act, 1972.

15. In order to appreciate the rival
contentions,
the
relevant
statutory
provisions under the Act, 1972 may be
adverted to:-

"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 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 :
x x x x x

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
1 All. Sanjay Bhardwaj @ Bablu And Anr. Vs. Dinesh Chandra Gupta And Others
981
use other than the one for which it was
released, or as the case may be, omits to
occupy it within one month or such
extended
period
as
the
prescribed
authority may for sufficient cause allow
from the date of his obtaining possession
or, in the case 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
sub-section
(1)
of
section
21
demolishes 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 per cent 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 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.
x x x x x

34.
Powers
of
various
authorities and procedure to be followed
by them.- x x x x x

(4) Where any party to any
proceeding for the determination of
standard rent of or for eviction from a
building dies during the pendency of the
proceeding, such proceeding May be
continued after bringing on the record:

(a) in the case of the landlord or
tenant, his heirs or; legal representatives

(b)
in
the
case
of
an
unauthorised
occupant,
any
person
claiming under him found in occupation
of the building."

16. Rule 25 of the Rules, 1972
which provides the procedure for making
an application for bringing legal heirs on
record and Rule 20 which is in respect of
an
application
for
re-allotment
as
provided under Section 24(4) may also be
referred to:-

"20. Application for re-allotment
[Section 24(2)].-(1) An application by a
tenant under sub-section (2) of Section 24 or
982 INDIAN LAW REPORTS ALLAHABAD SERIES
allotment of a new building or any one of
them shall be made within one month from the
date on which the construction of the building
sought to be allotted is complete.

(2) The application shall also state
the extent of the tenant's requirements
regarding accommodation.

Explanation.-In this rule, the date
of completion of construction has the same
meaning as in the Explanation (a) of subsection (2) of Section 2.
x x x x x

25. Bringing legal representatives
on
record
[Section
34(4)].-(1)
Every
application for substituting the names of the
heirs or legal representatives, the claimants or
occupants of any person who was a party to
any proceedings under the Act and died
during the pendency of the proceedings shall
be preferred within one month from the date
of the death of such person.

(2) The application shall contain
the names and addresses and other details of
the heirs or legal representatives and their
relationship with the deceased and, be
accompanied by any affidavit in its support,
and thereupon, the application shall be
decided after a summary inquiry by the
authority concerned."

17. For ease of reference the definition
of the word "tenant", in terms of Section 3(a)
of the Act, 1972 is also being extracted
below:-

"3. Definitions.-In this Act,
unless the context otherwise requires-

(a) "tenant", in relation to a
building, means a person by whom its rent
is payable, and on the tenant's death-

(1) in the case of a residential
building, such only of his heirs as
normally resided with him in the building
at the time of his death;

(2) in the case of a nonresidential building, his heirs;"

18. A plain reading of the
aforementioned
statutory
provisions
indicates that sub-section (2) of Section
24 confers a right of re-entry on a tenant
who has been evicted in pursuance of an
order of eviction passed against him under
Section 21(1)(b) on the ground that the
building in question was in a dilapidated
condition and was required for the
purposes
of
demolition
and
new
construction. The right is in respect of a
new building or buildings, reconstructed
on the site of the dilapidated structure
after demolition thereof. This right
consists of making an application for
allotment of the newly constructed
building or any of such buildings, by the
tenant within the time prescribed, and the
District Magistrate after considering the
requirements
of
such
a
tenant
is
empowered to make allotment in his
favour with a liability to pay rent at an
amount equivalent to one per cent per
month of the cost of construction thereof
(including the cost of demolition of the
old building but not including the value of
land). This right to seek allotment of a
new construction is notwithstanding the
provisions contained under Section 2(2)
of the Act, 1972.

19. As per the procedure prescribed
under Section 24(2) the original tenant is
required to make an application for
allotment of the new building or any of
the
new
buildings
to
the
District
Magistrate, which is the usual condition
for initiating proceedings for allotment of
buildings. The time for making the
application has been provided under Rule
20 of the Rules, 1972 in terms of which
one month's time from the date of
completion of the construction of the
building sought to be allotted, has been
prescribed. The original tenant has been
1 All. Sanjay Bhardwaj @ Bablu And Anr. Vs. Dinesh Chandra Gupta And Others
983
granted a right of seeking allotment in
accordance with his requirement of the
new building or any of the new buildings
constructed on the site of the dilapidated
building from which he was evicted under
Section 21(1)(b).

20. The liability of the tenant to pay
rent is to be at an amount equivalent to one
per cent 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). It is noticeable that sub-section
(2) of Section 24 is in the nature of an
exception to the provisions contained under
Section 2(2) wherein it is provided that
nothing under the Act shall apply to a
building during the period of ten years or
fifteen years or forty years, as the case may
be, from the date on which its construction is
completed. The exception in respect of the
cases covered under sub-section (2) of
Section 24 has been provided in terms of the
language of Section 24(2) as also Section
2(2).

21. It is therefore seen that though
the provisions of the Act are inapplicable
to a new building constructed for a period
of ten years or fifteen years or forty years,
as the case may be, as provided under
Section 2(2), yet considering the hardship
which is implied in the eviction of a
tenant under Section 21(1)(b) particularly
where the tenant is evicted without the
bona fide need of the landlord being
considered or the assessment of his
comparative
hardship
vis-a-vis
the
landlord, the legislature has conferred
upon such tenant a right to have the newly
constructed building allotted to him.

22. It is also seen that existence of
an order of release under Section 21(1)(b)
on the ground that the building is in a
dilapidated condition and is required for
the purposes of demolition and new
construction is clearly a must for
attracting the provisions of Section 24(2)
to a case or in other words the provisions
under Section 24(2) would come into play
only upon an order of release having been
passed under Section 21(1)(b).

23. The provisions of Section
21(1)(b) and Section 24(2) are thus
required to be read conjointly in order to
give effect to the scheme under the Act
wherein the legislature has conferred a
special privilege or a sort of a lien to the
original tenant who has been evicted from
the building on the ground that it was in a
dilapidated condition, and at the site of
which a new building or several new
buildings have been constructed.

24. Considering the scheme of the
Act, 1972 the expression "original tenant"
as used under Section 24(2) would
therefore be referable to the "evicted
tenant", who has been evicted from the
building in proceedings under Section
21(1)(b) of the Act, 1972.

25. In the case of K. Srinivasa
Rao Vs. K.M. Narasimhaiah &Anr.14,
while
considering
similar
provisions
under the Karnataka Rent Control Act,
1961 it was held that a tenant who had
been evicted on the ground of the building
being required for immediate demolition
or reconstruction was entitled for reinduction in a premises reasonably
comparable or corresponding to the
premises occupied by him in the old
building. The relevant observations made
in the judgment are as follows:-

"8. ...There is nothing specific in
this connection in the language of subsection (1) of Section 28. However, a fair
984 INDIAN LAW REPORTS ALLAHABAD SERIES
commonsense reading of the provisions of
sub-section (1) of Section 28 would show
that a tenant against whom eviction
decree has been passed under Section
21(1)(j) and who has given notice as
contemplated under Section 27 of that Act
would be entitled to a tenement in the new
building which could be said to be
reasonably
comparable
to
or
to
reasonably correspond to the tenement in
respect of which the decree was passed..."

26. Much reliance has been placed
by the counsel for the petitioner on the
judgment in the case of Smt. Ratna
Prasad (supra) for the proposition that the
provisions relating to substitution of heirs
under Section 34(4) do not contemplate
substitution of heirs of a person who
makes an application for allotment of a
building. It is submitted that the right of
the person who applies for allotment is a
personal right and does not survive to the
legal heirs. Paras 6 to 12 of the judgment,
on which reliance has been sought to be
placed, are being extracted below:-

"6. The learned counsel for the
petitioner has impugned the validity of the
allotment order dated February 13, 1975
(Annexure IV). On a number of grounds.
The first contention is that the allotment
order could not be passed unless heirs of
Sri Prasad were substituted. In this
connection reliance has been placed on
certain provisions of the Act and the rules
framed thereunder. I have carefully gone
through them and in my judgment they do
not assist the petitioner at all. Section
34(4) is the only provision in the entire
Act which relates to substitution of heirs.
It reads:

"where
any
party
to
any
proceeding for the determination of
standard rent of or for eviction from a
building dies during the pendency of the
proceeding, such proceeding may be
continued after bring on record:

(a) in the case of the landlord or
tenant, his heirs or legal representatives;

(b)
in
the
case
of
an
unauthorised occupant, in any person
claiming
under
him
or
found
in
occupation of the building."

7. The provision makes it clear
that substitution of heirs is permitted only
in two cases, viz., in proceedings for the
determination of standard rent or for
eviction of Sri Prasad from any building.
Therefore, substitution of heirs could not
be claimed under Section 34(4).

8. Reliance has also been
placed on Section 34(8) which says;

"For the purposes of any
proceedings under this Act and for
purposes connected therewith the said
authority shall have such other powers
and
shall
follow
such
procedure,
principles of proof, rules of limitation and
guiding principles as may be prescribed."

9. The words ''any proceedings'
no doubt include allotment proceedings
also but the sub-section itself makes it
clear that in this connection only such
procedure or guiding principles will be
followed ''as may be prescribed'. The words
''other powers' used in this sub-section
clearly mean powers other than those given
in Section 34 but those powers must be
prescribed under the Act or the rules. These
powers are given in rule 22 of the Act and
nowhere contemplate substitution of heirs of
a person who makes an application for
allotment of a building. Although Section
151, C.P.C. applies to these proceedings but
substitution cannot be done under it because
there is a special provision in Section 34(4)
of the Act for substitution of heirs and the
established principle is that aid of Section
151. C.P.C. cannot be taken where there is
1 All. Sanjay Bhardwaj @ Bablu And Anr. Vs. Dinesh Chandra Gupta And Others
985
any specific provision for any purpose. Even
if it be said that there is no provision for
substitution for heir of a person who applies
for allotment aid of Section 151 cannot he
invoked because it is a personal right and
does not survive to the heirs. If the scope of
Section 151 was so wide there was no
necessity to enact. Section 34(4) for this
purpose because substitution in every case
could be done under Section 151, C.P.C.

10. The learned counsel for the
petitioner has also invoked the aid of rule
25 but in vain. This rule states: "Bringing
legal representatives on record: [Section
34(4)]

"(1)
Every
application
for
substituting the names of the heirs or
legal representatives, the claimants or
occupants) of any persons who was a
party to any proceedings under the Act
and died during the pendency of the
proceedings shall be preferred within one
month from the date of death of such
person.

(2)
The
application
shall
contain the names and addressed and
other details of the heirs or legal
representatives and their relationship
with the deceased and be accompanied by
an affidavit in its support, and thereupon,
the application shall be decided after a
summary
inquiry
by
the
authority
concerned."

11.
As
the
marginal
note
indicates, this rule has its connection with
substitution of heirs contemplated by
Section 34(4) of the Act. It prescribes
period of limitation of presenting an
application for substitution. Therefore,
even on the basis of this rule heirs of late
Sri Prasad could not be brought on the
record.

12. I am fortified in the
aforesaid view for one more reason.
Section 16 of the Act relates to allotment
and release of vacant buildings. Subclause (a) of Section 16(1) says that
subject to the provisions of this Act the
District Magistrate may by an order
require the landlord to let any building
which is, or has fallen vacant or is about
to fall vacant or a part of such building,
to any person specified in the order.
Obviously the words ''any person' in this
section
refer
to
the
applicant
for
allotment. S.-sec. (8) of this sedation says
that the allottee shall be deemed to
become tenant of the building from the
date of allotment. It means that till he is
only an applicant for allotment of a
building it is his personal right and the
moment an allotment order is passed in
his favour becomes a tenant as defined in
Section 3(8). It is only after allotment that
an applicant becomes tenant and can
claim the rights of such a person. Before
that, it is purely his personal right which
dies with him and the question of
substitution of his heirs does not arise. In
this connection reference may be made to
the case of V. Devaru v. State of Mysore
[A.I.R. 1958 S.C. 253.] in which claim
with which the plaintiff came to the court
was that he was wrongly excommunicated
and that was an action personal to him,
on the principle of actio personalis
Moritar cum persona. When he died the
suit was held to abate. In the instant case
also it was personal right of Sri Prasad to
apply for allotment and on his death the
application became non est. Even if he
had applied for allotment of the premises
in order to live with his wife and children,
the nature of his right could not change. If
the allotment order was passed in his
favour and he had entered into possession
of the building, the position would have
been different because in that case he
would have acquired the status of a tenant
986 INDIAN LAW REPORTS ALLAHABAD SERIES
as defined in the Act. In the instant case
he died before the allotment order was
passed and his application lapsed."

27. It may be pertinent to notice that
in the aforementioned case of Smt. Ratna
Prasad (supra) the husband of the
petitioner had applied for allotment of the
premises in question under Section 16 and
before the allotment order could be passed
or possession could be delivered he died.
It was in the said circumstances that it
was held that the allotment order having
not been made and the possession having
not been delivered the applicant had not
yet achieved the status of a "tenant" as
defined under Section 3(a) of the Act. He
was only an applicant for allotment of the
building and it was purely his personal
right which died with him and the
question of substitution of his heirs did
not arise. It was pointed out that it is only
after the allotment order has been made
that an applicant acquires the status of a
"tenant" and can claim his rights in the
said capacity.

28. The present case arises out of an
application filed by the original evicted
tenant seeking his re-entry on the basis of
the statutory right conferred upon him
under Section 24(2) on the ground of his
being evicted under Section 21(1)(b) for
the reason that the building was in a
dilapidated condition and was required for
demolition and reconstruction.

29. As against the case of Smt.
Ratna
Prasad
(supra)
wherein
the
substitution was being sought in respect
of the death of an applicant seeking
allotment under Section 16(1)(a), who had
yet not achieved the status of a tenant, in
the present case substitution is being
sought
by
the
legal
heirs
and
representatives of a person who was a
statutory tenant and who had been evicted
in proceedings under Section 21(1)(b),
and who had already applied for allotment
exercising the statutory right of re-entry
under Section 24(2) conferred upon him
in his capacity as the "original tenant".

30. The case of Smt. Ratna Prasad
(supra) is thus distinguishable on facts
and would not be applicable in the present
case.

31. In a similar set of facts in the
case of Ashish Kumar Vs. Additional
District
Judge,
Ayodhya
Prakaran,
Lucknow12, where substitution of the
legal heirs of a person applying for reentry was being sought, the judgment in
the case of Smt. Ratna Prasad Vs.
Additional
District
Judge-VIII,
Allahabad &Ors.3 was considered and
distinguished in the following terms:-

"3.
The
deceased
moved
application for re-entry, which was
adjudicated upon by the prescribed
authority and rejected by means of order
dated
29.2.2008.
The
deceased
challenging the said order filed rent
appeal. During the pendency of the said
application the deceased Horilal died
leaving behind opposite parties 2 to 4.
Opposite party no. 2 is employed in
Sahara India, Lucknow and opposite
party no.3 in Sonalika Tractor Company.
It is further submitted that substitution of
legal representative under section 34 (4)
of the U.P. Act No. 13 of 1972 is
permitted only two proceedings- (i)
Proceeding for the determination of
standard rent (ii) Proceeding for eviction
from a building; whereas the present
proceeding does not belong to the
aforesaid
proceeding,
therefore,
the
1 All. Sanjay Bhardwaj @ Bablu And Anr. Vs. Dinesh Chandra Gupta And Others
987
application
for
substitution
is
not
maintainable.

4. In support of his contentions
the learned counsel for the petitioner
cited a decision of this Court rendered in
the case of 1978 ARC 233, Mrs. Ratna
Prasad Vs. The VIIIth Additional District
Judge, Allahabad and others.

5. Upon perusal of the aforesaid
decision, I find that the facts of the
aforesaid case are quite different to the
present case. In the aforesaid case though
the allotment order was passed but the
possession was not delivered. In the said
case it has been held that applicant had
not acquired status of tenant. In the said
case the application for allotment was
moved but the house was not allotted.
However, since the application for
substitution was put up for order, Rent
Control and Eviction Officer allotted the
house in favour of the applicant who had
already died, therefore his wife and
children
moved
application
for
substitution which was rejected. This
court has held that the possession of
house was not delivered to the applicant.
In the meantime, he died, therefore, his
legal heirs have not achieved the status of
the tenant, accordingly rejected his
application.

6. Under the strength of the
aforesaid decision, the learned counsel
for the petitioner submits that in the
present case also the tenant has already
been evicted from the house in question
and his application for re-entry has also
been rejected. His legal heirs have no
status of tenancy, therefore, the order
passed by the Special Judge (Ayodhya
Prakaran)/Additional
District
Judge,
Lucknow
on
the
application
for
substitution suffers from error and is
liable to be quashed.

7. He also cited decisions of this
Court rendered in the cases of Keshav
Dwivedi and others Vs. Prescribed
Authority, Lucknow, 1975 ALJ , 75 and
Smt. Sabra Begum Vs. District Judge
Meerut and others, ALJ 1983 65 : 1982
(1) ARC 65 on the point that the
provisions
of
substitutions
are
not
applicable in the present case.

8. In the case of Ghannu Mal
and
others
Vs.
Additional
District
Magistrate (C.S) R.C.E.O., Lucknow and
others (writ petition no. 92 of 2001) this
Court has considered the provisions of
Rule 25 of the U.P. Urban Building
(Regulation of Letting, Rent and Eviction)
Rules, 1972 and held that legislature has
protected the right of the legal heirs
under Rule 25 of the Rules, 1972. Rule 25
of the Rules is as follows:-

"(1)
Every
application
for
substituting the name of (the heirs or legal
representatives, the claimants or occupants)
of any person who was a party to any
proceedings under the Act and died during the
pendency of the proceedings shall be
preferred within one month from the date of
the death of such persons.

(2) The application shall contain
the names and addresses and other details of
the heirs or legal representatives and their
relationship with the deceased and be
accompanied by any affidavit in its support,
and thereupon, the application shall be
decided after a summary inquiry by the
authority concerned."

9. Upon perusal of the record it
is evident that deceased Horilal in
eviction
proceeding
through
written
statement has mentioned the names of his
family members, in which opposite parties
2 to 4 were included.

10.