# Smt. Nirupa Rana & others v. Ist A.D.J., Dehradun & another

- **Citation:** (2000) 3 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-03-01
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nirupa-rana-others-v-ist-a-d-j-dehradun-another-39459
- **Pages:** 4

## Text

3All] Smt. Nirupa Rana & others V. Ist A.D.J., Dehradun & another
1
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By the Court

1. This writ petition is directed
against the order of the Prescribed
Authority dated 23.5.1997 allowing the
release application filed by the land lord-
respondent no. 2 and the order of the
appellate
authority
dated
1.3.2000
dismissing the appeal against the said
order.

2. Respondent No. 2 is the land lord
of the disputed premises. He filed an
application for release of the disputed
accommodation
against
three
tenants,
namely S.S. Thapa, B.S. Rana and Sri
Ahmad under section 21 (1) (a) of U.P.Act
N.13 of 1972 (in short the Act). Sri S.S.
Thapa is a tenant of the premises
comprising of two rooms, half verandah
and a kitchen. In the application, it was
stated
that
the
accommodation
in
occupation of the aforesaid tenants was in
a
dilapidated
condition and required
demolition and reconstruction. The land
lord is an Engineer in Indian Airlines and
is going to retire on 31.1.2001. He has to
settle his sister Usha who is unmarried and
another sister Niloufer who is mentally
retarded. He will construct after demolition
of the building for residential purpose.

3. The application was contested only
by two tenants. Namely S.S. Thapa and
B.N. Rana. Sri H.Ahmad did not file any
written objection. It was denied that the
disputed
accommodation
was
in
a
dilapidated
condition
and
requires
demolition and reconstruction. The need of
the land lord-respondent was also denied.

4. The Prescribed Authority made a
local inspection of the premises in dispute
and he recorded a finding that the need of
the land lord was bona fide and he will
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
2
occupy it for residential purpose. On a
comparative hardship, it was found that he
would suffer a greater hardship in case the
application was rejected. The application
was, accordingly, allowed. The petitioners
preferred an appeal against the said order.
The appeal has been dismissed by the
respondent no.1 by the impugned order
dated 1.3.2000.

I have heard Sri K.K. Arora, learned
counsel for the petitioners who assailed the
findings recorded by both the authorities.

5. Learned counsel for the petitioners
submitted that the authorities below failed
to record any finding as to how much
accommodation was required by the land
lord. It is contended that there are three
tenants. Two tenants have one room
accommodation and the third tenant had
two room' accommodation besides another
tenant had vacated the accommodation and
thereafter it was demolished and an open
land was available for him to raise
construction. There was no dispute about
the extent of the accommodation with the
tenants. The Prescribed Authority had
made local inspection and it has been
found that the land lord- respondent is
serving as an Engineer in Indian Airlines.
Keeping in view of his status, even if the
entire accommodation is taken with the
tenants, he will be having four rooms and
this cannot be taken more than his
requirement.

6. It is next contended that in the
application he had stated about the need of
his sisters but they are not members of the
family as defined under section 3 (g) of the
Act. The need of a land lord depends on
various factors. He may require an
accommodation for a person who may be
helping him or the landlord is under an
obligation to accommodate such person,
e.g.
a
servant,
a
brother
receiving
education and an unmarried sister who is
dependent on him. His sister Usha is
unmarried and his another sister Niloufer
is mentally retarded. There is no one
except the respondent to look after them.
The need of the landlord has rightly been
examined by the Prescribed Authority in
this context.

7. It is further submitted that the
application filed by respondent no. 2 was
not maintainable under section 21 (1) (a)
of the Act. It is contended that the
application was filed against three tenants.
One of the tenants was Sri B.S. Rana. He
died on 19.3.1996, during the pendency of
the proceedings before the Prescribed
Authority. An application for substitution
was filed for impleadment of his widow
Smt.Nirupama Rana and his four sons.
One of his sons, namely, Vikas Rana, after
the death of his father, was recruited in the
Army in December, 1996 and was posted
in Shilong. It is submitted that after his
recruitment in the Army, the application
under section 21 (1) (a) of the Act was not
maintainable in view of clause (iii) to third
proviso of Section 21 (1) (a) of the Act
which reads as under:-

Provided also that no application
under clause (a) shall be entertained-

"(iii) in the case of any residential
building, against any tenant who is a
member of the armed forces of the Union
and in whose favour the prescribed
authority
under
the
Indian
Soldiers
(Litigation) Act, 1925 (Act No. IV of
1925) has issued a certificate that he is
serving under special conditions within the
meaning of Section 3 of that Act, or where
3All] Smt. Nirupa Rana & others V. Ist A.D.J., Dehradun & another
3
he has died by enemy action while so
serving then against his heirs"

8. This submission was not raised
before the Prescribed Authority. The
appellate authority has also referred to any
argument alleged to have been raised
before it. In para 18 of the writ petition, it
has not been stated that which counsel
argued the appeal before the appellate
authority
raising
this
question.
The
petitioners have not filed any affidavit of
such counsel.

9. On examining the merit of this
submission, I do not find any substance.
Sri B.S. Rana was a tenant but he was not
in Army service at the time when the
application was filed under section 21 (1)
(a) of the Act against him. He was already
retired from service. In my view clause
(iii) of third proviso will be applicable as
against the tenant who was a member of
the armed forces of the Union at the time
of the filing of the application. If a tenant
has died and one of his heirs is recruited in
army service, later on, this clause will not
be applicable unless the tenant had died by
enemy action as is clear from words" or
where he has died by enemy action while
so serving then against his heirs."

10. Secondly, this provision will be
applicable when such tenant is serving in
special condition within the meaning of
Section
3
of
the
Indian
Soldiers
(Litigation) Act, 1925. The petitioners
have not shown in the writ petition under
what special conditions one of the sons of
the deceased-tenant, namely, Vikas Rana
is serving in the Army. The petitioners
have annexed a certificate (Annexure '9'
to the writ petition) alleged to have been
issued by the prescribed authority that he
is serving under special conditions but the
special
conditions
have
not
been
mentioned. The intention of the Legislative
is that if the tenant is a member of the
armed forces of the Union and there are
special conditions, he may not be evicted
even if the need of the land lord is bona
fide. Section 3 of the said Act reads as
under :-
" 3. Circumstances in which an Indian
Soldier shall be deemed to be serving
under
special
conditions:-
For
the
purposes of this Act, an Indian solider
shall be deemed to be or, as the case may
be , to have been serving-

(a) under special conditions (when he is
or has been serving under war conditions),
or overseas, or at any place (beyond India,
or any such place within India as may be
specified by the Central Government by
notification in the Official Gazette) ;

(b) under war conditions- when he is or
has
been,
at
any time during the
continuance of any hostilities declared by
the {Central Government} by notification
in the {Official Gazette} to constitute a
state of war for the purposes of this Act of
at any time during a period of six months
thereafter -
(i) serving out of India,

(ii) under orders to proceed on field
service.

(iii) Serving with any unit which is for the
time being mobilized, or

(iv) Serving under conditions which, in
the opinion of the prescribed authority,
preclude him for obtaining leave of
absence to enable him to attend a court as
a party to any proceeding or when he is or
has been at any other time serving under
conditions service under which has been
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
4
declared by the (Central Government) by
notification in the {Official Gazette} to be
service under war conditions, and

[(c) overseas- when he is or has been
serving in any place outside India (other
than Ceylon) the journey between which
and (India) is ordinarily under taken
wholly or in part by sea]"
The
petitioners
have
failed
to
establish that any special condition existed
as contemplated under the said section.

In view of the above, the writ petition
is dismissed.

11. In the end, learned counsel for
the petitioners prayed that some time may
be granted to the petitioners to vacate the
disputed premises. Considering the facts
and circumstances of the case, the
petitioners are granted six months' time to
vacate the disputed premises provided,
they give an undertaking on affidavit
before the Prescribed Authority within
two weeks from today that they will vacate
the disputed premises within the time
granted by this Court and would hand over
its peaceful possession to the landlord-
respondent No. 2.
 Petition Dismissed.

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By the Court

Heard Sri K.P. Agarwal learned
counsel for petitioner.

The petitioners are workmen of
Pepsico India Limited which is a purely
private company and is not State under
Article 12 of the Constitution.

1. The grievance of the petitioner is
that the company has terminated the
services of certain employees and is doing