# Umesh Chandra Shukla v. Additional District Judge, Room No. 1, Allahabad and others

- **Citation:** (2007) 2 ILRA 534
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-07-18
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-chandra-shukla-v-additional-district-judge-room-no-1-allahabad-and-others-40922
- **Pages:** 5

## Headnote

Sri M.A. Mishra
S.C.

U.P.
Urban
Building
(Regulation
of
Letting
Rent
&
Eviction
1972-S-21
(1)(a)-Release Application on ground of
bonafide need-resisted by prospective
allottee-held prospective allottee has no
right to contest the release application.

Held: Para 14

In my opinion the contention of the
learned counsel for the petitioner has
force and the need of the petitioner is
bona fide. Even comparative hardship of
the petitioner is greater than that of the
respondent
who
otherwise
being
a
prospective allottee has neither any right
of say in the matter nor has any right to
challenge
the
bona
fide
need
and
2 All] Umesh Chandra Shukla V. A.D.J., Allahabad and others
535
comparative hardship of the landlord.
The allotment to a prospective allotttee
was in the teeth of the law laid down in
Smt. Savitri Devi (supra) and Full Bench
decision rendered in Baleshwar Nath
(supra) wherein it has been held that
prospective allottee cannot even be
heard at the time of consideration of
release application. This right under the
Act is only of the tenant who is in actual
lawful
physical
possession
of
the
accommodation.
Case law discussed:
2000 (62) ALR-267
2006 (62) ALR-201
1986 (12) ALR-113
AIR 2002 SC-2204

## Text

534 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
orders passed under Section 11(1) of the
Ceiling Act, no appeal is maintainable.
Under the said sub-section, either tenureholder accepts the case of the State or
State accepts the case of the tenure-holder
without any contest or adjudication.
However, if matter is disputed by either
party and thereafter Prescribed Authority
adjudicates the dispute either in favour of
the State or tenure-holder, the order falls
under Section 11(2) of the Ceiling Act.
Such order is clearly appealable under
Section 13. In the instant case, the order
of
the
Prescribed
Authority
dated
17.12.2003 is clearly an order after
considering and resolving the dispute. It
runs into 15 pages. Each and every point
of the tenure-holder has been decided
after discussion of the material on record.
Several points had been raised by the
tenure-holder and on every point, there
was a serious dispute in between tenureholder and the State. Accordingly, the
order of the Prescribed Authority cannot
be said to be based on consent.

12. Moreover, copy of order dated
23.05.2002 has not been filed. It appears
that through the said order, petitioner was
directed to file objections on merit and
confusion of provision, which was quoted
in the notice dated 24.01.2002 was
cleared. In any case as mentioned earlier,
quoting a wrong provision is never fatal.

13. Accordingly, I hold the appeal to
be
maintainable.
Writ
petition
is,
therefore, dismissed.

14. As far as prayer of Greater
NOIDA is concerned, no order is required
to be passed thereupon. Learned counsel
for Greater NOIDA had only argued that
due to continuance of stay order passed in
this writ petition, some difficulties were
being felt in proposed acquisition of the
land in dispute along with other adjoining
lands. As the writ petition itself has been
dismissed, hence interim order passed in
the writ petition automatically comes to
an end.

Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2007

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 11080 Of
2002

Umesh Chandra Shukla
...Petitioner
Versus
Additional District Judge, Room No. 1,
Allahabad and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Pandey
Sri M.S. Uddin
Sri S.L. Mishra

Counsel for the Respondents:
Sri M.A. Mishra
S.C.

U.P.
Urban
Building
(Regulation
of
Letting
Rent
&
Eviction
1972-S-21
(1)(a)-Release Application on ground of
bonafide need-resisted by prospective
allottee-held prospective allottee has no
right to contest the release application.

Held: Para 14

In my opinion the contention of the
learned counsel for the petitioner has
force and the need of the petitioner is
bona fide. Even comparative hardship of
the petitioner is greater than that of the
respondent
who
otherwise
being
a
prospective allottee has neither any right
of say in the matter nor has any right to
challenge
the
bona
fide
need
and
2 All] Umesh Chandra Shukla V. A.D.J., Allahabad and others
535
comparative hardship of the landlord.
The allotment to a prospective allotttee
was in the teeth of the law laid down in
Smt. Savitri Devi (supra) and Full Bench
decision rendered in Baleshwar Nath
(supra) wherein it has been held that
prospective allottee cannot even be
heard at the time of consideration of
release application. This right under the
Act is only of the tenant who is in actual
lawful
physical
possession
of
the
accommodation.
Case law discussed:
2000 (62) ALR-267
2006 (62) ALR-201
1986 (12) ALR-113
AIR 2002 SC-2204

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for the
parties and perused the record.

2. The petitioner is the owner and
landlord of the southern portion of the
premises
no.
504,
Mumfordganj,
Allahabad which he got in family
settlement. On the basis of the family
settlement the petitioner got his name
mutated in the records of the Nagar
Mahapalika and a new number 504-A/1
was allotted to the portion allotted to him.
The shop in dispute is situated in the said
premises no. 504-A/1, Mumfordganj,
Allahabad. The petitioner states that
though he is a post-graduate from
Allahabad University he could not get any
job despite his best efforts. In the mean
time he was married. To earn his
livelihood he decided to ply a tracker and
purchased the same in the year 1981.
However, to his bad luck he fell seriously
ill in the year 1987 and suffered heavy
loss in that business compelling him to
sell his tracker to pay the installments of
the loan. It is further stated by the
petitioner that he remained ill for about 3
years which badly affected his financial
condition forcing him to partition the hall
of his drawing room by erecting a wall
facing the road and opened a small shop
in the year 1990 under the name and style
of "Manisha General Store". To his
another misfortune he sustained injuries
and fracture due to fall from the roof of
his house and became unable to run the
shop. The injuries were so grievous in
nature that they continued for three years
with the result he became financially
indebted and physically incapacitated,
hence he let out the shop to one Sri
Nileshwar Das Gupta who subsequently
shifted to Calcutta after handing over the
vacant possession of the shop in dispute
to the petitioner on 15.4.1997.

3. The intimation about vacancy of
the shop in dispute was given to the Rent
Control
and
Eviction
Officer
1st,
Allahabad who directed the Rent Control
Inspector to inspect the shop in dispute
and submit a report. In the mean time
applications for allotment of the shop in
dispute were moved by some prospective
allottees. The Rent Control Inspector
accordingly submitted his report dated
5.5.1997 and the Rent Control and
Eviction Officer declared vacancy on
25.5.1998.

4. Since the petitioner had no other
source of livelihood, as such in the
compelling circumstances he decided to
enter into business again in his own shop.
He therefore filed release application for
his personal need of the shop in dispute
after declaration and notification of
vacancy by the Rent Control and Eviction
Officer who again called report from the
Rent Control Inspector. The Rent Control
Inspector also vide his report dated
536 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
2.9.1998 reported that the need of the
petitioner is genuine and bona fide.

5. From the record it appears that the
release application was rejected by the
Rent Control and Eviction Officer vide
judgment and order dated 15.12.1998
appended as Annexure 3 to the writ
petition on the ground that the prospective
allottee had intimated that the petitioner
had wrongly mentioned his income from
rent as Rs.1400/- per month whereas he is
getting Rs.2270/- per month as rent and
the shop in dispute was let out to
someone. The prospective allottee is
alleged to have filed several objections
against the release application filed by the
petitioner. The petitioner preferred Rent
Control Revision No. 1 of 1999, Umesh
Chandra Shukla Vs Rent Control and
Eviction Officer, Allahabad, before the
District Judge, Allahabad against the
order dated 15.12.1998. However, the
aforesaid revision filed by the petitioner
against the order of the Rent Control and
Eviction Officer before the District Judge
was
also
dismissed
vide
impugned
judgment and order dated 6.1.1999
appended as Annexure 8 to the writ
petition.

6. The Rent Control and Eviction
Officer thereafter allotted the shop in
dispute to Sri Mohd. Yasin, respondent
no. 3 vide order dated 31.3.1999 on a
monthly rent of Rs. 250/- only.

7. The petitioner again filed
Revision No. 410 of 1999 against the
aforesaid order dated 31.3.1999 which too
has been rejected vide impugned order
dated 11.12.2001, hence this writ petition.

8. By means of this writ petition the
petitioner has prayed for a writ of
certiorari for quashing the impugned
orders dated 11.12.2001, 31.3.1999 and
15.12.1998 passed by respondent nos. 1
and 2 and allow the release application of
the petitioner. It is further prayed by the
petitioner that a writ of mandamus be also
issued commanding respondent no. 2 to
stay further proceedings in Case No. 12 of
1997, Mohd. Yaseen Vs Umesh Chandra
Shukla, in respect of premises no. 504,
Mumfordganj, Allahabad and also not to
interfere with the peaceful possession of
the petitioner of the shop in dispute till the
disposal of the writ petition.

9. The contentions of the learned
counsel for the petitioner are that the shop
in dispute was never let out to any one
except Sri Nileshwar Das Gupta; that the
need of the petitioner is genuine and bona
fide; that there is basic difference between
Section 16 and Section 21 (1) (a) of the
U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972
(Act No. XIII of 1972) and therefore the
bona fide need of the petitioner cannot be
compared under Section 21 (1) (a) of the
Act; that the prospective allottee has no
right to oppose the release application of
the petitioner and to adduce any evidence
in rebuttal on the bona fide need of the
petitioner; that the allottee has not
complied with the mandatory provision of
paying rent within a week from the date
of allotment and the courts below have
erred in holding that the allottee could not
pay the rent within a week from the date
of alotment because the petitioenr had
obtained stay order whereas the stay order
was granted after more than a week of the
passing of the allotment order; and that
the courts below have erred in holding
that the allotment order is in form 'B'
whereas issuance of form 'B' is a
2 All] Umesh Chandra Shukla V. A.D.J., Allahabad and others
537
ministerial act and is issued in consonance
with the allotment order.

10. In support of his contention the
learned counsel for the petitioner has
relied upon the decisions of this Court
rendered in Smt. Savitri Devi Rohatagi Vs
Vth Additional District and Sessions
Judge, Kanpur Nagar, 2006 (62) A.L.R.
267; and Baleshwar Nath Bhargava Vs
District Judge, Saharanpur and others,
2006 (62) A.L.R. 201.

In Smt. Savitri Devi (supra) it has
been held: -

"In the absence of allotment order or
release order, it is only landlord who is
entitled to possess the building in
dispute."

It has further been held: -

"the concept of bona fide need under
Section 16 is slightly different in the
concept of bona fide need under Section
21 of the Act. Under Section 16 there is
no sitting tenant and prospective allottee
has got no say in matter while under
Section 21 there is a sitting tenant whose
interest is to be safeguarded. In a
particular case need may not be grave
enough for release under Section 21 of the
Act against sitting tenant but it may be
quite sufficient for release under Section
16 of the Act."

In Baleshwar Nath Bhargava (supra)
it has been held: -

"As held in the Full Bench authority
of this Court in Talib Hasan Vs A.D.J.,
1986 (12) A.L.R. 113 (FB) and by the
Supreme Court in Kedar Nath Sharma Vs
G.
Gaur,
A.I.R.
2002
S.C.
2204,
prospective allottee cannot be heard at the
time
of
consideration
of
release
application of landlord under Section 16
of the Act. He cannot even oppose the
need of the landlord. He can also neither
refute the evidence adduced by the
landlord
nor
adduce
any
evidence
regarding bona fide need of the landlord.
In the instant case not only allottee was
permitted to adduce the evidence in
rebuttal of bona fide need of landlord but
even the need of landlord and prospective
allottee were compared by the courts
below. It is patently against the letter and
spirit of Section 16 of the Act. Concept of
bona fide need under Section 21 on the
one hand and under Section 16 on the
other hand is quite different. Under
Section 21 interest of sitting tenant is to
be safeguarded while under Section 16
there is no sitting tenant and prospective
allottee has got no say in the matter unless
release application of the landlord is
rejected."

11. On the contrary the main
contentions of the learned counsel for the
respondent-prospective allottee are that
the judgment and order dated 31.3.1999
passed by the Prescribed Authority is
legal, proper and genuine and is liable to
be confirmed by this Court; that the
judgment and order dated 11.12.2001
passed by the revisional court is legal and
proper and need no interference by this
Court; that both the courts below have
recorded concurrent findings of fact, as
such liable to be upheld by this Court; that
the petitioner has given contradictory
statement regarding his income.

12. As far as the objection filed by
the respondent is concerned, from the
record it is disclosed that the same is not
538 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
supported by any affidavit, hence the
same cannot be relied.

13. The shop in dispute was always
found locked whenever the Rent Control
Inspector visited the shop in dispute and
is still vacant. Besides this it is also come
on record that the daughter of the
petitioner is of marriageable age and the
petitioner is unable to marry her due to
financial crunch and that after the shop is
released the petitioner is desirous of
opening his own General Merchant shop
after taking loan from his relatives and
friends.

14. In my opinion the contention of
the learned counsel for the petitioner has
force and the need of the petitioner is
bona fide. Even comparative hardship of
the petitioner is greater than that of the
respondent
who
otherwise
being
a
prospective allottee has neither any right
of say in the matter nor has any right to
challenge the bona fide need and
comparative hardship of the landlord. The
allotment to a prospective allotttee was in
the teeth of the law laid down in Smt.
Savitri Devi (supra) and Full Bench
decision rendered in Baleshwar Nath
(supra) wherein it has been held that
prospective allottee cannot even be heard
at the time of consideration of release
application. This right under the Act is
only of the tenant who is in actual lawful
physical
possession
of
the
accommodation.

15. For the reasons stated above, the
petition is allowed. The impugned orders
are quashed. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.04.2007

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.5236 of 1987

Sri Subhash Chandra

...Petitioner
Versus
Chief Controlling Revenue Authority,
Allahabad and another ...Respondents

Counsel for the Petitioner:
Sri Deo Raj

Counsel for the Respondents:
S.C.

Indian Stamp Act-Article-48 Scheduled
1-B-clause-(ee)-charge of Stamp duty
and penality-Power of attorney executed
in 1985-provisions of clause (ee) came in
operation
on
1.11.91-amount
of
consideration not specified in the Deedstamp duty can be charged taking into
account of consideration paid under
agreement-held-No penality could be
charged.

Held: Para 8

Neither in the deed of power of attorney
nor in the impugned orders, it has been
mentioned that what amount was paid
under the agreement executed on the
date of execution of power of attorney,
i.e. 30.01.1985.

(Delivered by Hon'ble S.U. Khan, J.)

1. Heard learned counsel for the
parties.

The question involved in this writ
petition is regarding payment of stamp
duty
on
power
of
attorney
dated
30.01.1985, copy of which is Annexure-1