Radhey Shyam Rastogi vs Ashish Kumar & Anr

Radhey Shyam Rastogi ... Appellant

VERSUS

Ashish Kumar and Anr. ... Respondents

ORDER

1. Leave granted.

2. The appellant is a tenant in respect of Northern

portion the premises No.124, Mohalla Chaukasi,

Shahjahanpur, U.P. [in short "the disputed premises]

since 1955. An application was filed by the

respondent for release of the disputed premises

before the prescribed authority under Section 21 [1]

1 [b] of the UP Urban Buildings (Regulation of letting

Rent and Eviction) Act, 1972 (in short, "the Act"),

inter alia, on the grounds that the building was in a

dilapidated condition and was required for

demolition and reconstruction. The application filed

by the respondent was, however, opposed by the

appellant by filing a written objection in which the

ground of non-compliance of mandatory provision of

Rule 17 framed in the Act was taken. However,

during the pendency of the application before the

prescribed authority, the respondent, without

obtaining any order or direction from the prescribed

authority, had filed a report obtained from a private

architect who, in his report, indicated that the

disputed premises was in a dilapidated and dangerous

condition. Finally, on 29th of November, 1997, the

prescribed authority allowed the application and

passed an order of eviction against the appellant. An

appeal was carried by the appellant before the learned

2 District Judge against the order of eviction passed by

the prescribed authority.

3. During the pendency of the appeal before the

appellate court, the appellant filed an application for

appointment of an Advocate/Engineer Commissioner to

carry out an inspection of the disputed premises and submit

a report stating therein whether the disputed premises was

in a dilapidated and dangerous condition for which

demolition and reconstruction was required which was the

main ground for eviction of the appellant from the disputed

premises under the Act. This application for appointment

of a commissioner was, however, rejected by the Appellate

Court and subsequently by an order dated 6th of September,

2003, the appeal filed by the appellant against the order of

eviction passed by the prescribed authority was also

dismissed.

4. Feeling aggrieved and dissatisfied with the final

order of the Appellate Court, a Writ Petition was moved

before the High Court which came to be registered as W.P.

3 No. 41799/2003. Before the High Court, the appellant not

only challenged the order of the Appellate Court but also

submitted that an Advocate/Engineer Commissioner be

appointed for the purpose of finding out whether the

disputed premises is in a dilapidated condition and,

therefore, required demolition and reconstruction.

However, while disposing of the writ petition the High

Court passed an order which is to the following effect :-

"In the changed circumstances and in view of the subsequent events, in our opinion, the proceedings before the Court below may go on. There is no justification for staying the proceedings in the writ petition even after 25 years of filing of the application under Section 21 of the Act on merely interlocutory order. The costs of the reconstruction is increasing day by day.

For the reason stated above, the writ petition is dismissed.

5. A plain reading of this order would show that the

High Court did not apply its mind while disposing of the

writ petition because, while passing the aforesaid order, the

High Court in fact was under a wrong impression that the

order rejecting the prayer of the appellant for appointment

4 of an Engineer/Advocate Commissioner was not

challenged in the said writ petition which was admittedly

not the position.

6. Be that as it may, in the present case, we are of the

view that since the eviction of the appellant from the

disputed premises was based on the ground

mentioned herein earlier, namely, dilapidated and

dangerous condition requiring reconstruction, it

would be fit and proper that an independent

Engineer/Advocate Commissioner is appointed by

the High Court for coming to a proper finding in that

respect. However, since the matter has already taken

for more than twenty five years, we are of the view

that the High Court should appoint an Engineer

Commissioner for the above purpose and direct the

said Commissioner to submit a report within six

weeks from the date of passing of an order

appointing an Engineer Commission and then after

receiving a report from the Commissioner, High

5 Court shall decide the writ petition which was filed

against the final order of eviction after giving hearing

to the parties and after passing a reasoned order in

accordance with law positively within two months

from the date of submitting the report by the

Engineer Commissioner.

7. Accordingly, the impugned order is set aside and the

matter is remitted back to the High Court for a

decision in the light of the observations made

hereinabove. The appeal is thus allowed to the extent

indicated above. There will be no order as to costs.

..............................J. [ TARUN CHATTERJEE ]

NEW DELHI: ..............................J. September 02, 2008 [ AFTAB ALAM ]

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