# Sanjeev Rastogi v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 435
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-09
- **Case number:** Writ C No. 26374 of 2023
- **Bench:** Pritinker Diwaker, C.J. Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjeev-rastogi-v-state-of-u-p-ors-50892
- **Pages:** 4

## Headnote

Civil Law - Constitution of India,1950Article 226-SARFEASI Act-Sections 14, 17
& 17(4A)-The petitioner claimed tenancy
rights and sought to prevent eviction-the
landlord defaulted on the loan, leading to
the initiation of recovery proceedings-the
petitioner failed to demonstrate lawful
tenancy through registered documentsUnder SARFAESI Act, valid tenancy
prior to the creation of mortgage can
protect
possession
rights-tenancy
established post-mortgage or without
proper registration cannot override the
bank's rights-The petitioner has the
option to approach the Debt Recovery
Tribunal under section 17(4A) of the
Act to establish tenancy rights.(Para 1
to 8)

The writ petition is disposed of.( E-6)
.
List of cases cited:

## Text

2 All. Sanjeev Rastogi Vs. State of U.P. & Ors.
435
bar u/s 25 of the Act, 1894, the court shall
not award compensation less than the
amount awarded by the Collector, therefore, the
amount of compensation determined by the
Collector u/s 28A(2) of the Act, 1894 cannot be
reduced by the reference court u/s 28A(3) of the Act,
1894. Therefore, permitting such an application on
the part of the beneficiary of acquired land will
amount to frustrating the intention of the legislature.
From the perusal of the order of respondent No.2, it
is also clear that before passing the order u/s 28A(2)
of the Act, 1894, respondent No.3 was heard;
therefore, proper opportunity of hearing was
accorded to respondent No.3.

18. In view of the above considered position,
this Court is of the view that application for reference
u/s 28A(3) of the Act, 1894 is not maintainable at the
instance of respondent No.3 and this Court, in the
judgement of U.P. Avas Evam Vikas Parishad vs.
Mohd. Yakoob and others (supra) has not laid down
any law regarding the maintainability of such
application on the part of the beneficiary of the
acquired land.

19. Accordingly, this writ petition is allowed,
and direction is issued to respondent No.3 to
forthwith release the awarded amount u/s 28A(2) of
the Act, 1894 by order dated 27.2.2023 within a
period of one month from the date of receiving a
certified copy of this order along with interest as per
Section 34 of the Act, 1894.
----------
(2024) 2 ILRA 435
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2023
BEFORE

THE HON'BLE PRITINKER DIWAKER, C.J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ C No. 26374 of 2023

Sanjeev Rastogi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Vineet Kumar Sahu

Counsel for the Respondents:
C.S.C., Sri Ashish Agrawal, Sri Sandeep
Arora

Civil Law - Constitution of India,1950Article 226-SARFEASI Act-Sections 14, 17
& 17(4A)-The petitioner claimed tenancy
rights and sought to prevent eviction-the
landlord defaulted on the loan, leading to
the initiation of recovery proceedings-the
petitioner failed to demonstrate lawful
tenancy through registered documentsUnder SARFAESI Act, valid tenancy
prior to the creation of mortgage can
protect
possession
rights-tenancy
established post-mortgage or without
proper registration cannot override the
bank's rights-The petitioner has the
option to approach the Debt Recovery
Tribunal under section 17(4A) of the
Act to establish tenancy rights.(Para 1
to 8)

The writ petition is disposed of.( E-6)
.
List of cases cited:

1. Hemraj Ratnakar Salian Vs HDFC Bank Ltd &
ors.. (2021) AIR SC 3880

2. Bajrang Shyamsunder Agarwal Vs Central
Bank of India & anr.. (2019) 9 SCC 94

 (Delivered by Hon'ble Pritinker Diwaker,
C.J.
&
Hon'ble Ashutosh Srivastava, J.)

1. Heard Shri Vineet Kumar Sahu,
learned counsel for the petitioner, Shri
Sandeep Arora, learned counsel for
respondent No. 3-Union Bank of India
and learned Standing Counsel for
State-respondent Nos. 1 & 2. None for
respondent No. 4.
436 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The writ petitioner claims to be a
tenant of shop situate at 253, Jagdishbagh
Attarsuiya, Nagar Nigam, Food Safety
Zone-05, Allahabad. The shop is part and
parcel of the premises No. 253A/334,
Attarsuiya in front of Attarsuiya Police
Station,
Pargana
and
Tehsil
Sadar,
Prayagraj owned by one Vishal Kumar
Singh son of late Shri Lalji Singh, the
respondent No. 4 herein. The petitioner has
approached this Court with a relief for
quashing the order dated 20.2.2023 passed
by the respondent No. 2 in proceedings
under Section 14 of SARFAESI Act, 2002
and further praying that he may not be
dispossessed from the shop in question
under the order dated 20.2.2023.

3. It is the case of the petitioner that
he is a valid tenant of the shop and there is
a regular suit, being Suit No. 10 of 2020
pending adjudication before the Civil Court
between him and his landlord/respondent
No. 4. The petitioner is depositing the rent
of the premises regularly. The impugned
order is completely exparte and is not
binding upon the petitioner yet the
respondents are compelling the petitioner to
vacate the shop from which the petitioner
earns his livelihood.

4. Shri Sandeep Arora, learned
counsel appearing for respondent No. 3
submits that the landlord of the petitioner,
i.e. the respondent No. 4 was advanced
financial assistance by the Bank to run his
proprietorship concern M/s A to Z Builder
& Suppliers. The House No. 253A/334
Attarsuiya including the shop under the
tenancy
of the
petitioner
had
been
mortgaged
to
secure
the
financial
assistance. The respondent No. 4 defaulted
in repayment of the loan and consequently,
the Bank has moved the District Magistrate
to take possession of the mortgaged
property under Section 14 of SARFAESI
Act, 2002. The impugned order dated
20.2.2023
has
been
passed
by
the
respondent No. 2. Shri Arora further
submits that the respondent No. 4 has
already approached the Debt Recovery
Tribunal
under
Section
17
of
the
SARFAESI Act, 2002 assailing the order
dated 20.2.2023 and no indulgence has
been granted by the Debt Recovery
Tribunal. The petitioner has been set up to
resist the proceedings of taking over
possession by the Bank. It is contended that
the petitioner being the tenant cannot resist
the taking over possession of the property
mortgaged which right the Bank enjoys
under law owing to the default committed
by the respondent No. 4 borrower,
particularly in view of the fact that the
petitioner has shown his tenancy from
12.2.2018 when his shop has been
registered under the Food Safety and
Standards Act, 2006 after the financial
assistance was availed by the landlordrespondent. Moreover, the petitioner has
not established his tenancy rights over the
shop in question which is part and parcel of
the secured asset through any registered
instrument and is relying simply on certain
deposits made towards rent through Bank.
Reliance is placed upon the decision of the
Apex Court in the case of Hemraj
Ratnakar Salian versus HDFC Bank Ltd.
and others, reported in AIR 2021 SC 3880.

5. We have heard the learned counsel
for the parties and have also perused the
record as also the decision of the Apex
Court cited at the Bar. The Apex Court in
the decision cited was dealing with orders
passed
by
the
Chief
Metropolitan
Magistrate, Esplanade Mumbai rejecting
the application filed by tenant restraining
the HDFC Bank from taking possession of
the property in his possession. The Apex
2 All. Sanjeev Rastogi Vs. State of U.P. & Ors.
437
Court taking note of a decision of the Trial
Judge Bench in the case of Bajrang
Shyamsunder Agarwal versus Central
Bank of India and another, reported in
2019 (9) SCC 94 after considering almost
all decisions in relation to the right of a
tenant in possession of a secured asset held
that if a valid tenancy under law is in
existence even prior to the creation of the
mortgage such tenant's possession cannot
be disturbed by the secured creditor by
taking possession of the property. If a
tenancy under law comes into existence
after the creation of a mortgage but prior to
issuance of a notice under Section 13 (2) of
the SARFAESI Act, it has to satisfy the
conditions of Section 65-A of the Transfer
of Property Act, 1882. If a tenant claims
that he is entitled to possession of a secured
asset for a term exceeding one year, it has
to be supported by the execution of a
registered instrument. If the tenant only
relies upon an unregistered instrument or
on oral agreement accompanied by delivery
of possession, the tenant is not entitled to
possession of the secured asset for more
than the period prescribed under the
provisions of the Transfer of Property Act.

6. In the case at hand, in our opinion,
there is serious doubt as to the bona fide of
the petitioner to be a lawful tenant of the
shop which is part and parcel of the secured
asset. The petitioner has not brought on
record any registered tenancy agreement
executed in his favour. The rent deposits
brought on record only demonstrate rent
being deposited in Misc. Case No. 10 of
2020 from January, 2020 upto September,
2023
@
Rs.550/-
per
month.
The
documents brought on record by the
petitioner to establish his tenancy over the
secured asset does not inspire confidence.
Moreover, it is not the case of the
respondent No. 4 that the secured asset
comprised of shops at the time of creation
of the charge, which the counsel for the
respondent-Bank
has
informed
was
6.9.2016. In such circumstances, the
tenancy if at all exists was created
subsequent to the mortgage.

7.

Learned
counsel
for
the
respondent-Bank has also drawn our
attention to the provisions of Section 17
(4A) of the Act, 2002, which provides a
forum to tenants to establish one's tenancy
or lease hold rights upon the secured asset
before the Debt Recovery Tribunal which
has been empowered to examine the facts
and evidence produced in relation to such
claim and pass such orders, it deems fit in
accordance with the provisions of the Act.
The Section 17 (4A) of the Act, 2002 is
being reproduced hereunder:-

"17 (4A) Where-

(i) any person, in an application
under sub-section (1), claims any tenancy
or leasehold rights upon the secured asset,
the
Debt
Recovery
Tribunal,
after
examining the facts of the case and
evidence produced by the parties in relation
to such claims shall, for the purpose of
enforcement of security interest, have the
jurisdiction to examine whether lease or
tenancy, ?

(a)
has
expired
or
stood
determined; or

(b) is contrary to Section 65A of
the Transfer of Property Act, 1882 (4 of
1882); or

(c) is contrary to terms of
mortgage; or

(d) is created after the issuance of
notice of default and demand by the Bank
under sub-Section (2) of Section 13 of the
Act; and

(ii) the Debt Recovery Tribunal is
satisfied that tenancy right or leasehold
438 INDIAN LAW REPORTS ALLAHABAD SERIES
rights claimed in secured asset falls under
the sub-clause (a) or sub-clause (b) or subclause (c) or sub-clause (d) of clause (i),
then notwithstanding anything to the
contrary contained in any other law for the
time being in force, the Debt Recovery
Tribunal may pass such order as it deems
fit in accordance with the provisions of this
Act."

8. In view of the above, we are not
inclined to entertain the writ petition for the
reliefs prayed for. The writ petition being
devoid of merits, is dismissed leaving it
open for the petitioner to invoke the
remedy available to him under the law.
----------
(2024) 2 ILRA 438
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2023
BEFORE

THE HON'BLE SYED QAMAR HASAN RIZVI,
J.

Writ C No. 26762 of 2023

Nirmala Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vishal Khandelwal

Counsel for the Respondents:
C.S.C., Sri Anil Kumar, Sri Avinash Chandra
Srivastava, Sri Satish Kumar Pandey

Civil Law - Constitution of India,1950Article 226-challege to-cancellation of
land allotment-the dispute concerns the
allotment of land to one Naresh Singh in
1979,
later
transferred
to
the
petitioner(Nirmala Devi) and recorded in
revenue records-After 39 years, in 2017, a
complaint by one Pradeep Kumar led to
proceedings
to cancel the allotment,
alleging non-residency of the original
allottee(Naresh Singh) in the concerned
Gram
Sabha-The
District
Magistrate
initially found the proceedings barred by
limitation but ruled the allotment "illegal"
based on the inquiry report, initiating suo
moto proceedings for cancellation-the
petitioner challenged this, arguing that
the
delay
of
39
years
made
the
proceedings inavalid and that no fraud
was involved in the allotment or transferHeld, the court reviewed the provisions of
Section
128
of
the
U.P.
Revenue
Code,2006 which allows for cancellation
of allotments but imposes a five year
limitation on applications by aggrieved
persons-No specific limitation applies to
suo moto actions-The court held that
actions, even if suo moto, must be
initiated within a "reasonable time"-The
39 year delay was deemed unreasonableinitiation of proceedings after such a delay
was
arbitrary
and
unsustainable-The
orders
dated
14.09.2018(District
Magistrate's decision to proceed suo
moto)
and
29.05.2023
(Additional
Commissioner's
dismissal
of
the
petitioner's revision as interlocutory) were
quashed.(Para 1 to 56)

The writ petition is allowed. .( E-6)

List of cases cited:

1. Ghanshyam & 11 Ors Vs U.O.I. & ors. Writ-C.
5606 of 2020

2. Siemens Ltd. Vs St. of Mah. & ors.. (2006) 12
SCC 33

3. Joyous Blocks & Panels Pvt. Ltd & anr. Vs
Asst. Commr, Commercial Taxes, Ballygunj
Charge & anr. (2022) SCC Online Cal 2032

4. Subhag & anr.. Vs Board of Revenue U.P. at
Alld & ors.. (2011)114 RD 219

5. Suresh Giri & ors.. Vs Board of Revenue U.P.
at Alld & ors.. (2010)109 RD 566

6. Jiya Ram & ors.. Vs St. of U.P. &
ors..(2012)115 RD 372.