NON 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                             … Appellant  

VERSUS

Ashish Kumar and Anr.                        … Respondents

O R D E R

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]

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[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

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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.

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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

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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

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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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