Full Judgment
R.H. Zaidi, J.
1. In this case counter and rejoinder-affidavits have already been filed, as desired by learned counsel for the parties this petition was heard and is being disposed of finally at this stage.
2. Present petition arises out of proceedings under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. 1972 (U. P. Act No. XIII of 1972), (for short the Act), for release of the building. Municipal No. 3/1 and 3/2. Library Bazar. Mussoorle, Dehradun which consisted of shop-cum-residential accommodation against Shiv Dhan. father of the petitioners, who was the tenant of a shop on the ground floor and was also in occupation of the first and second floors of the said building. Itwas pleaded that the said building was bona fide and genuinely required to respondent No. 3. Plea of comparatively greater hardship was also taken in the said application. It was on 8.5.1994 that during the pendency of the said application, Shiv Dhan died leaving the petitioners as his heirs and legal representatives. For substitution of his heirs an application was filed on 8.8.1994 under Section 34 (4) of the Act read with Rule 25 of the Rules framed under the Act. The said application was objected to and opposed by the petitioners on the ground of delay. It was pleaded that the delay in filing the said application was not explained in accordance with law. The same was. therefore, legally not liable to be condoned and the application was to be dismissed. The prescribed authority after hearing the parties upheld the objection raised by the petitioners and dismissed the application by the judgment and order dated 16.8.1996 and consigned the file to the Record Room. Challenging the validity of the said Judgment and order dated 16.8.1996. an appeal was filed by respondent No. 3 before the appellate authority under Section 22 of the Act. !t was contended that the prescribed authority has acted illegally in dismissing the application for condonation of delay as well as the application for substitution and also erred in law in consigning the file to Record Room. The said order was. therefore, liable to be set aside and the substitution application and the appeal were liable to be allowed. The appellate authority by Its judgment and order dated 5.7.2000 set aside the order passed by the prescribed authority, allowed the appeal and remanded the case to the prescribed authority for decision afresh. Hence, the present petition.
3. Learned counsel for the petitioners vehemently raised and pressed only one ground. It was urged that the appeal filed by respondent No. 3 was legally not maintainable. The appellate authority acted in excess of its Jurisdiction in entertaining the appeal and allowing the same. In support of hissubmission, learned counsel for the petitioners relied upon the decision in Lalji Tandon v. Union of India, 1976 AWC 105. According to him. the order passed by the Appellate Authority dated 5.7.2000 was liable to be quashed.
4. On the other hand. Mr. K. C. Sinha learned counsel appearing for the contesting respondent supported the validity of the order passed by the appellate authority. It was contended that the order passed by the prescribed authority was an order under Section 21 of the Act, which was final, therefore, the same was appealable under Section 22 of the Act. The appellate authority, therefore, committed no mistake nor acted in excess of its jurisdiction in entertaining the appeal and in allowing the same. It was urged that the writ petition had no merits. The same was. therefore, liable to be dismissed.
5. I have considered the rival submissions made by learned counsel for the parties and carefully perused the record.
6. The prescribed authority in operative portion of its order directed that the application No. 14 Ka (substitution, application) was rejected. It further directed to consign the file to the Record Room. While dealing with the validity of the order rejecting the substitution application. It has been held by the appellate authority as under :
'Thus, the appellant came to know about the death of the deceased Shiv Dhan in the last week of July, 1994, and the application for substitution of the heirs of the deceased Shlv Dhan was moved by the appellant on 7.8.1994 and. therefore, is within time, from the date of the knowledge of the death of deceased Shiv Dhan.'
7. The correctness and validity of the aforesaid finding has not been challenged by learned counsel for the petitioners in this petition. Thus, there was no justification for the Prescribed Authority to dismiss the substitution application and send thefile to the Record Room. The question with regard to maintainability of the appeal was also raised before the appellate authority. The appellate authority dealt with the said question and ultimately held thai :
'The impugned order is undoubtedly a final order and no suit or proceeding was left alive and nothing was left to be tried in the ordinary way in accordance with law.
Therefore, I am of the opinion that the appeal preferred against the impugned order dated 16.8.1996 passed by Sri Z. U. Khan, the then Civil Judge (Prescribed Authority) Dehradun at camp Court. Mussoorie rejecting the substitution application 14 Ka moved in P.A. Case No. 3 of 1992, Sardani Swarn Kaur and another v. Sri Shiv Dhon and others and consigned the file to the Record Room is liable to be set aside. The application 14 Ka as mentioned above is liable to be allowed accordingly.'
Having recorded the said findings, the impugned order was set aside, the appeal was allowed and the case was sent back to the prescribed authority for decision in accordance with law.
8. Section 22 of the Act provides as under :
'22. Appeal.--Any person aggrieved by an order under Section 21 or Section 24 may within thirty days from the date of the order prefer an appeal against it to the District Judge, and in other respects, the provisions of Section 10 shall mutatis mutandis apply in relation to such appeal.'
9. The question, therefore, is whether the order passed by the Prescribed Authority dismissing the substitution application and consigning the file to the Record Room was an order under Section 21 of the Act. Section 21 of the Act provides for release of a building on the ground of personal need and for demolition and reconstruction. The application for release was.admittedly, filed by respondent. No. 3 under clause (a) of sub-section (1) of Section 21 of the Act on the ground of his personal and genuine need. Unfortunately, during the pendency of the said application, Shiv Dhan the tenant, died. His heirs were, therefore, required to be substituted in his place in the application which is permissible under Section 34 (4) of the Act read with Rule 25 of the Rules framed thereunder. Application was made for substitution of his heirs and legal representatives. However, the application for substitution was filed beyond time prescribed under the Act alongwith an application for condonation of delay and setting aside the abatement. Legally, as stated above, there was no delay in making the application as counting from the date of the knowledge, the application was filed within the time prescribed under the law, as held by the Appellate Authority. The said finding, as stated above, has not been challenged by learned counsel for the petitioners. The effect of rejection of the application for substitution and directing the file to be sent, to the Record Room, was that the application under Section 21 stood rejected as there remained nothing pending to be proceeded with or decided by the Prescribed Authority. The said order, therefore, amounted to an order rejection of application under Section 21 of the Act, which was clearly appealable under Section 22 of the Act. Application filed under Section 21 of the Act may be rejected by the prescribed authority on merits or otherwise, rightly or wrongly, after contest or without it, in either case it will be appealable. The appeal filed by the petitioners was, thus, legally maintainable. The view taken by the appellate authority, therefore, cannot be said to be erroneous or illegal in any manner.
10. So far as the decision in Lalji Tandon's case (supra) is concerned. in the said case an appeal was filed against an order rejecting an application for setting aside the ex parte judgment, which was passed in exercise of the powers under Rule 22 (f) of the Rules framed under the Act. Under Section 22 of the Act, appeal isprovided only against the orders passed under Section 21 and Section 24 of the Act. It is well-settled in law that right of appeal is a creature of statute. Under Section 22 of the Act, there being no provision for filing an appeal against the order passed under Rule 22 (f) of the Rules framed under the Act, this Court, therefore, rightly ruled in the abovenoted case that the appeal filed by the appellant was legally not maintainable. On the basis of the ratio of the said case, no advantage can be claimed by the petitioners.
11. 1 do not find any illegality or infirmity in the impugned order.
12. The writ petition fails and is hereby dismissed but without any order as to costs.