Radhey Shyam Rastogi
Vs. Ashish Kumar & ANR.  INSC 1488 (2 September 2008)
REPORTABLE IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5427 OF
2008 (Arising out of SLP (C) No. 7665 of 2007) Radhey Shyam Rastogi ...
Ashish Kumar and Anr. ...
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 [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.
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.
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.
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
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
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
The costs of the
reconstruction is increasing day by day.
For the reason stated
above, the writ petition is dismissed.
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 of an Engineer/Advocate
Commissioner was not challenged in the said writ petition which was admittedly
not the position.
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.
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
[ TARUN CHATTERJEE ]
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