# Smt. Leela Devi v. Ramchandra Prasad & Ors

- **Citation:** (2020) 12 ILRA 522
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-12
- **Case number:** Matter Under Article 227 No.2471 of 2020
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-leela-devi-v-ramchandra-prasad-ors-45631
- **Pages:** 5

## Headnote

A. Constitution of India, 1950-Article 227 & U.P.
Act No. 13 of 1972-Section 24-right of re-entry
u/s 24 of the Act is in regard to the "building"
only where the same is in existing form or reconstructed after demolition and there is no
power to direct the re-entry over the vacant
land of the demolished building or over which
the demolished building was once existing. it is
obvious that the power to put the tenant back
in possession of his tenanted accommodation
could be exercised only if the building had not
be
demolished
and
was
available
for
occupation in its original condition. it does not
authorize the prescribed authority or the
District Judge to direct the tenant shall occupy
the site of the building and put his own
structure temporary or otherwise. (Para 2 to 16)

The Petition is dismissed. (E-6)

List of Cases cited:-

## Text

522 INDIAN LAW REPORTS ALLAHABAD SERIES
applicability. The mandate of the Act as
contained under Section 11 (4) is extremely
clear as the time for appointment of
Arbitrator is only restricted to 30 days.
Admittedly, the arbitrator has not been
appointed within 30 days. Thus, I have no
hesitation to hold that the applicant is right
in approaching this Court for appointment
of an Arbitrator in exercise of the powers
under Section 11 (4) and 11 (6) of the Act.
Accordingly, I appoint Justice Shashi Kant
Gupta (R/o Judges Bungalow No. 25,
Drummond Road, Prayagraj/9 Elgin Road,
Civil
Lines,
Prayagraj
(Mobile
No.
9415216833) as an Arbitrator.

16. Office is directed to seek consent
of the learned Arbitrator by the next date in
terms of mandate of Section 11 (8) of the
Act.

17. List this case on 7.1.2021.
----------
(2020)12ILR A522
ORIGINALJURISDICTION
CIVILSIDE
DATED: ALLAHABAD 12.10.2020

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Matter Under Article 227 No.2471 of 2020

Smt. Leela Devi ...Petitioner
Versus
Ramchandra Prasad & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Kumar.

Counsel for the Respondents:
Sri Ravindra Nath Chaubey, Sri Rajni Ojha.

A. Constitution of India, 1950-Article 227 & U.P.
Act No. 13 of 1972-Section 24-right of re-entry
u/s 24 of the Act is in regard to the "building"
only where the same is in existing form or reconstructed after demolition and there is no
power to direct the re-entry over the vacant
land of the demolished building or over which
the demolished building was once existing. it is
obvious that the power to put the tenant back
in possession of his tenanted accommodation
could be exercised only if the building had not
be
demolished
and
was
available
for
occupation in its original condition. it does not
authorize the prescribed authority or the
District Judge to direct the tenant shall occupy
the site of the building and put his own
structure temporary or otherwise. (Para 2 to 16)

The Petition is dismissed. (E-6)

List of Cases cited:-

1. Anand Kumar Vs Tulsi Ram, (2005) 2 JCLR
323 Alld, (2004) 2 ARC 832

2. Hameed Kunju Vs Nazim (2017) 8 SCC 611

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Sri Abhishek Kumar, learned
counsel for the petitioner-tenant and Ms.
Rajni
Ojha,
learned
counsel
for
the
respondents-landlord and perused the record.

2. Present petition has been filed
challenging the judgement and order dated
31.1.2020
passed
by
the
Additional
Sessions Judge, Ballia in Civil Misc. Case
No. 205 of 2017 under Section 24 of the
UP Act No. 13 of 1972 (Leela Devi vs.
Ramchandra Prasad and others).

3. The admitted facts, shorn of details,
are that in regard to the property in dispute a
release
application
was
filed
by
the
respondents-landlord under Section 21(1)(a)
of the UP Act 13 of 1972, which was
contested by the petitioner-tenant herein upto
the Hon'ble Apex Court without success and
thereafter, in execution proceedings the
possession of the property in question was
handed
over
to
the
landlord.
12 All. Smt. Leela Devi Vs. Ramchandra Prasad & Ors.
523

4. It is submitted that after the
possession was taken over by the landlord,
property in question was demolished and
even that property has been transferred to a
third person whereas a litigation in respect
of ownership of the property is pending
between the parties. Therefore, after the
execution proceedings were finalized, the
petitioner-tenant moved an application
under Section 24 of the UP Act No. 13 of
1972 for re-entry in the property in
question on the ground that the release
application was not bona fide and the
purpose of the release application stood
frustrated, therefore, the petitioner-tenant
herein has a right to re-entry in the property
in question. That application was rejected
by the court below.

5. Submission is that the court below
has incorrectly observed that once the
tenant has lost upto to the Hon'ble Apex
Court, therefore, now proceedings initiated
under Section 24 of the UP Act No. 13 of
1972 cannot be permitted as a thing which
cannot be done directly, cannot be allowed
to be done indirectly. He submits that
judgement relied on by the petitioner-tenant
was incorrectly distinguished and the
judgement relied on by the respondentslandlord is not applicable in the present
case.

6. Per contra, learned counsel for the
respondents-landlord has supported the
impugned order.

7.
I
have
considered
the
rival
submissions and perused the record.

8. Insofar as the title of the property in
question is concerned, a different dispute is
pending between the parties. The decree
and the judgement of the court below has
become final upto the Hon'ble Apex Court
in
respect
of
the
tenant-landlord
relationship and cannot be said to be
affected by the title suit.

9. Therefore, insofar as the transfer of
the property in question is concerned,
prima facie, the doctrine of lis pendens
would apply in the concerned case.
However, no specific opinion is being
expressed in this regard in this petition in
hand.

10. To consider this case on merit, it
would be beneficial to refer to Section 24
of the UP Act 13 of 1972, which is quoted
as under:

"24. Option of re-entry by tenant.- (1)
Where a building is released in favour of
the landlord and the tenant is evicted under
section 21 or on appeal under section 22,
and the landlord either puts or causes to be
put into occupation thereof any person
different from the person for whose
occupation according to the landlord's
representation, the building was required,
or permits any such person to occupy it, or
otherwise puts it to any use other than the
one for which it was released, or as the
case may be, omits to occupy it within one
month 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
524 INDIAN LAW REPORTS ALLAHABAD SERIES
three months from the date of such act or
omission, order the landlord to place the
evicted tenant in occupation of the building on
the original terms and conditions, and on such
order being made, the landlord and any
person who may be in occupation thereof shall
give vacant possession of the building to the
said tenant, failing which, the prescribed
authority shall put him into possession and
may for that purpose use or cause to be used
such force as may be necessary.

(2) Where the landlord after obtaining
a release order under clause (b) of subsection (1) of section 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."

(Emphasis supplied)

11. A perusal of Section 24 would
clearly disclose that the right of re-entry is
only in respect of a 'building' and not on a
piece of land or inhabitable or demolished
structure. In the present case, this Court is
concerned with Section 24(1) only as
release application was filed under Section
21(1)(a) of the UP Act 13 of 1972.

12. The Act itself applies to building.
Section 29-A is the only exception to the
same, which was added vide Amendment
Act No. 28 of 1976 in the UP Act 13 of
1972 (Section 20) with effect from
5.7.1976
with
specific
purpose.
Undisputedly,
this
provision
is
not
applicable in the present case so no further
discussion is required on that.

13. The term 'building' is defined
under Section 3 (i) as under:

"Section 3 (i): "Building", means a
residential
or
non-residential
roofed
structure and includes-

(i) any land (including any garden),
garages and out-houses, appurtenant to
such building;

(ii) any furniture supplied by the
landlord for use in such building;

(iii) any fittings and fixtures affixed to
such building for the more beneficial
enjoyment thereof;"

(Emphasis supplied)

14. Needless to point out that in this
definition, the word "any land' is the land
"appurtenant to such building." Therefore,
existence of a building is a must. After
alleged demolition of relevant building,
only land or inhabitable or demolished
structure is in existence without there being
any 'building' existing therein.

15. Therefore, clearly, right of re-entry
under Section 24 of the UP Act No. 13 of
12 All. Smt. Leela Devi Vs. Ramchandra Prasad & Ors.
525
1972 is in regard to the "building" only
where the same is in existing form or reconstructed after demolition and there is no
power to direct the re-entry over the vacant
land of the demolished building or over which
the demolished building was once existing.
The Court below has rightly relied on the
judgement in Shiv Kumar vs. Additional
District Judge, Bulandshahar and others, 1980
ARC 400 in this regard, paragraphs 2 and 3
whereof are quoted as under:

"2. Taking the first point first. I am
clearly of the view that the impugned order
is without jurisdiction. It is settled law that
statutory authorities and tribunals can
exercise
only
such
powers
as
are
specifically conferred upon them. The
learned
District
Judge
passing
the
impugned order was acting as a statutory
tribunal. He was not exercising the
jurisdiction of an ordinary civil court.
Under the provisions of U.P. Act No. XIII
of 1972, there is only one provision,
namely, Section 24 of the Act which confers
a right of re-entry on the former tenants
who have been evicted under Section 21 of
the Act. The legislature has laid down the
precise procedure for enabling such a
tenant
to
get
back
either
the
accommodation as it existed or the
accommodation
which
has
been
reconstructed after demolition. The Act has
conferred upon the named authority
specific powers towards that end. Section
24 ........"

3. I am fortified in the view which I am
taking as regards the power of the court by
a direct authority of this Court, namely,
Shrimati Sundera Devi vs. Prescribed
Authority and others, 1977 UPRCC 419. A
learned Single Judge who had occasion to
deal with the precise question with which I
am concerned, observed thus:

"It is obvious that the power to put the
tenant back in possession of his tenanted
accommodation could be exercised only if
the building had not be demolished and
was available for occupation in its original
condition. The expression 'placed evicted
tenant in occupation of the building'
consequently implies the existence of the
building. The power is not available when
the building has been demolished. It does
not authorise the prescribed authority or
the District Judge to direct that the tenant
shall occupy the side of the building and
put his own structure temporary or
otherwise."

(Emphasis supplied)

16. To my mind, in the above quoted
paragraph of Shrimati Sundera Devi (supra)
in second last line the word "side" should
be "site". Hence, there appears to be a
typing mistake.

17. I have perused the judgement
relied on by the petitioner in the court
below. In my opinion, the court below has
rightly distinguished the judgement relied
on by the tenant-petitioner as in that case
the proceedings were pending before this
Court.

18. In Anand Kumar vs. Tulsi Ram,
2005 (2) JCLR 323 Alld: 2004 (2) ARC
832 release application of the landlord was
allowed exparte, which was set aside and
release application was restored. The
application
filed
by
the
tenant
for
restitution of possession under Section 144
CPC was allowed, which was challenged
by the landlord without any success and in
the meantime building was demolished
whereas in the present case release
application was filed in the year 2006 and
was successfully contested by the tenant for
long 11 years and ultimately he handed
526 INDIAN LAW REPORTS ALLAHABAD SERIES
over possession in execution proceedings.
The re-entry is being claimed after
conclusion of the entire proceeding upto
Hon'ble Supreme Court against him.
Hence, on facts and provisions of law both,
where restitution was claimed under
Section 144 CPC (and Section 24 of the UP
Act 13 of 1972 was not involved) the case
of Anand Kumar (supra) is distinguishable.

19. There is yet another aspect to
distinguish Anand Kumar (supra). In such
matter, as observed by the Hon'ble
Supreme Court in Hameed Kunju vs.
Nazim, (2017) 8 SCC 611 (para 29) once
the possession had been delivered and
decree was recorded as satisfied in
accordance with law, the litigation had
come to an end leaving no lis pending.
Paragraph 29 of the said judgement is
quoted as under:

" 29. In our considered view, once the
possession had been delivered and decree
was recorded as satisfied in accordance
with law, the litigation had come to an end
leaving
no
lis
pending.
In
these
circumstances, in the absence of any prima
facie case having been made out on any
jurisdictional issue affecting the very
jurisdiction of the court in passing the
eviction decree, the High Court should
have declined to examine the legality of
four orders impugned therein."

20. Thus, I do not find any prima facie
jurisdictional error or issue involved in the
present case and thus, I do not find any
good ground to interfere in the impugned
judgement in exercise of powers under
Section 227 of the Constitution of India.

21. Present petition is devoid of merit
and is accordingly dismissed.
----------
(2020)12ILR A526
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter Under Art. 227 No. 9002 of 2019

Shilendra Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Fakhruzzaman.

Counsel for the Respondents:
A.G.A.

A. Constitution of India,1950-Article 227 -
Uttar Pradesh Gansters and Anti Social
Activities (Prevention) Act, 1986-Section 18maintainibility
of
-release
of
attached
property of the petitioner-he was required to
disclose the source of his income as he had
no source of income or ancestral propertythe properties, prima facie, held to be
proceed of crime as sixteen cases registered
against him-the property were ordered to be
attached and appointed receiver to dispose of
the same-petitioner can avail his remedy of
appeal u/s 18 of the Act as the Act provides
equally efficacious alternative remedy to the
petitioner.(Para 2 to 13)

The Petition is dismissed. (E-6)

List of Cases cited: -

1. Whirlpool Corporation Vs Registrar of Trade
Marks, Mumbai & ors.,(1998) 8 SCC 1

2. Jangali Pasi Vs St. of U.P. Thru Secy. &
anr.,(2015) 3 ALJ 673

3. St. of U.P. Vs Nasim Khan & ors.,
Government Appeal No,- 6042 of 2010

(Delivered by Hon'ble J.J. Munir, J.)