Dismissed

Mahendra Pratap (Since Deceased) and Another v. Smt. Saroj Gupta

Allahabad HC21 Dec 2018WRIA/27116/2018

Case brief

AI extract

What is this about?

Writ petitioner challenged eviction order based on upholding of landlord-rejected release. Court dismissed petition ob granting courtesy time for vacating premises if arrears paid and undertaking filed. Upheld appellate court amendment allowing reconstruction for future reletting to tenant.

What did the court decide?

Petition dismissed. Petitioners permitted to stay for three months upon depositing arrears and furnishing undertaking to vacate, subject to compliance.

Mahendra Pratap (Since Deceased) and Another Vs Smt… — Landlord and Tenant | Allahabad HC (2018)

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Court No. - 19

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Case :- WRIT - A No. - 27116 of 2018

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Petitioner :- Mahendra Pratap (Since Deceased) And Another Respondent :- Smt. Saroj Gupta Counsel for Petitioner :- Siya Ram Verma,Arvind Kumar Verma

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Hon'ble Manoj Kumar Gupta,J.

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A supplementary affidavit has been filed in compliance of order dated 18.12.2018.

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The instant writ petition is directed against the judgment and order dated 23.11.2018 passed by Additional District Judge, Court No. 11, Kanpur Nagar in Rent Appeal No. 78/2009 whereby, the appeal filed by the respondent-landlord under Section 22 of U.P. Act No. 13 of 1972 (for short 'the Act') has been allowed and an order of eviction has been passed against the petitioners. The impugned order grants thirty days' time to the petitioners to vacate the tenanted premises. The order also directs the respondent-landlord to demolish and reconstruct new building in place of the existing one within six months and thereafter, handover possession to the petitioners. The said direction has been issued to ensure compliance of Section 24(2) of the Act. The portion of the newly constructed building which is to be let out and the rent therefor have been left open for determination as per the procedure prescribed.

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The respondent-landlord filed a release application under Section 21(1)(b). The Prescribed Authority found the building to be in dilapidated condition and also recorded a finding that it required demolition and reconstruction. However, it observed that the respondent-landlord in paragraph 14 of the release application and paragraph 22 of the affidavit had taken a stand that after demolition and reconstruction, the building will be used by herself and will not be let out to anyone. This was

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construed as an impediment in the way of the tenant in exercising his right under Section 24(2) of the Act and consequently, the release application was rejected.

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Section 24(2) of the Act provides that 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 and the building shall, subject to the tenant's liability to pay rent as aforesaid, be subject to the provisions of the Act.

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The respondent-landlord being aggrieved by order of the Prescribed Authority rejecting the release application on the above ground filed an appeal under Section 22 of the Act, which was registered as Rent Appeal No. 78/2009. During the pendency of the appeal, the respondent-landlord filed an application seeking amendment in paragraph 14 of the release application, thereby, signifying her intention to let out a portion of newly constructed building to the tenant. The said application was allowed by the Prescribed Authority by order dated 3.9.2011. The petitioners filed an application seeking recall of the said order, which was allowed by order dated 5.1.2015 and the landlord was directed to serve a copy of the amendment application upon the petitioner, so that it could be decided on merits. It seems that thereafter the respondentlandlord filed a better amendment application for amending the original release application stating that after demolition and

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reconstruction of the building, two rooms along with latrine and bathroom and courtyard on the first floor would be let out to the petitioner. The said application was allowed by the Appellate Court by order dated 26.2.2015. The petitioners again filed an application for recall of the said order, but which was rejected by the Appellate Court by order dated 5.5.2016 observing that the amendment had already been carried out and no prejudice has been caused to the petitioners. The Appellate Court thereafter heard the appeal and allowed the same by the order impugned herein.

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The sole submission of learned counsel for the petitioners is that the amendment could not have been allowed at the appellate stage, after passage of considerable time, since filing of the original release application. He further submitted that objection filed by the petitioners against the amendment application was not considered while allowing the same.

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As noted above, the Prescribed Authority found that the building was in a dilapidated condition and required for purposes of demolition and new construction. However, the release application was rejected solely on the ground that there was an apprehension that the right of re-entry conferred in favour of the petitioners under Section 24(2) of the Act would stand defeated in view of averment made in paragraph 14 of the release application.

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Under Section 21(1)(b), the building is released for purposes of demolition and new construction and not on account of bona fide need of the landlord for occupation by him or any member of his family. Consequently, in order to dispel the apprehension regarding defeat of right of re-entry under Section 24(2), the amendment was sought signifying assent to let out the newly constructed building to the petitioner. The amendment was for

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the benefit of the petitioner and the Appellate Court was eminently right in observing that thereby no prejudice what so ever has been caused to the petitioners. This Court does not find any illegality in the Appellate Court allowing such an amendment. The submission made by learned counsel for the petitioners is wholly misconceived and devoid of merit.

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No other submission has been made to challenge the impugned order.

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The petition lacks merit and is dismissed.

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At this stage, counsel for the petitioners prayed for some time being granted to the petitioners to vacate the tenanted premises.

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Having regard to the entire facts of the case, it is hereby provided that in case, the petitioners furnish a joint undertaking before the Prescribed Authority that they would vacate the tenanted premises within three months from today and shall not induct any other person, they shall be permitted to continue for three months from today, provided they also deposit the entire arrears of rent, if any, and continue to deposit the rent for future months as and when it falls due. In case of default of any of the above conditions, the protection granted hereby shall stand vacated automatically and it shall be open to the respondentlandlord to obtain possession by executing the release order.

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(Manoj Kumar Gupta, J.)

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Order Date :- 21.12.2018 AM/-

Mahendra Pratap (Since Deceased) and Another v. Smt. Saroj Gupta

Case brief

What is this about?

What did the court decide?

Mahendra Pratap (Since Deceased) and Another v. Smt. Saroj Gupta

Case brief

What is this about?

What did the court decide?

What the court decided

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