- (1.) ANJANI Kumar, J. Since these two writ petitions arisen out of same set of facts, therefore, they are being disposed of by this common judgment. In short, the facts of the case are that the father of petitioners 1 and 2, namely, Late Radha Krishna was tenant of a shop and father of petitioner No. 3, namely. Late Mushtaque Ahmad was tenant of another shop. The then landlord, namely, Pratap Narain Jaiswal filed an application under Section 21 (1) (b) of U. P. Act No. 13 of 1972, here-in-after referred to as the 'act' for release of the aforesaid shops in his favour on the ground that the building Is in dilapidated condition and requires demolition and re-construction. During the pendency of the aforesaid application before the prescribed authority, the parties entered into a compromise wherein it was agreed that the landlord will take the residential portion on the first floor and on the ground floor, the shops will be constructed. The father of petitioners 1 and 2 shall be provided with a shop measuring area of 7x20' and father of petitioner No. 3 shall also be provided a shop measuring area of 7x20'. It is further agreed upon that the construction of the shops were, completed by 30th April, 1979 and if the possession is not given by the date fixed, the landlord shall pay damages at the rate of R6. 50/- per, day to he each of the aforesaid tenants and in case the amount of damage is not paid as agreed upon, it can be recovered from the Court. The prescribed authority in terms of the aforesaid compromise entered into by the parties, passed the order and the tenants have vacated the shops. Since the landlord has not proceeded with the construction of the shops, therefore, after 30th April. 1979, the tenants filed an application before the prescribed authority to South issue a certificate for recovery of the amount in terms of the compromise under Rule 24 of the U. . P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. In short the 'rules'. This application was allowed by the prescribed authority vide his order dated 14th April, 1981 for recovery of the amount but only to the extent of two years rent and not for the amount of damages as agreed upon under the agreement. Consequent whereof, the tenants have vacated the shops, thus the petitioners have filed Civil Misc. Writ Petition No. 7064 of 1981 for the recovery of the amount by seeking modification, in the order passed by the prescribed authority on the ground that they were entitled 6f the claim of damages at the rate of Rs 50/- per day till they were not given the possession of the newly constructed shops, as agreed upon between the parties under the compromise entered into between the landlord and the tenants and that it should not be confined only for a period of two years. The landlord-respondent filed counter affidavit in the aforesaid writ petition, wherein he has admitted that the parties have entered into a compromise and a compromise application supported by an affidavit was filed before the prescribed authority and that the case was decided in terms of the compromise. During the pendency of the aforesaid writ petition (7064 of 1981), the petitioners filed an application seeking a further direction from the Court that the landlord be directed to handover the possession of the shops which have now been constructed. The landlord filed a counter affidavit to the application filed by the petitioners stating therein that it is incorrect to say that the shops were reconstructed. In paragraph 4 of the aforesaid counter affidavit filed in writ petition No. 7064 of 1981, the landlord has asserted, which reads thus: "4. That the contents of paragraph 4 of the affidavit are denied and it is stated that every effort was made on behalf of the landlord to start reconstruction of the disputed property but the same could not be started on account of various factors beyond the control of the landlord. "
(2.) THE matter remains pending when the petitioners again asserted that the shops have now been reconstructed. This Court on 14th October, 1998 directed the respondents of the writ petition appear in person before this Court on 12th January, 1999. This Court also directed the landlord-respondent to put back the petitioners in possession of the shops in question, which was agreed to be provided to the petitioners or to show cause by the date fixed. When the aforesaid application came up for hearing before this Court, learned counsel for the respondent landlord made a statement that he has no instruction thus, this Court issued directed to the Registry of this Court to issue notice to the respondent-landlord and the case was directed to come up on 12th January, 1999. THE Registry sent the registered letter, but the un-delivered cover was not received back, thus on the basis of the report of the notice was also sent and shall be deemed to have been served under Explanation II to Rule 12 of Chapter VIII of the Rules of the Court. On 3rd February, 1999, this Court directed the Senior Superintendent of Police, Deoria to put the petitioners-tenants back in possession over the shops in question within one week from the date of the presentation of the certified copy of the order along with true copy of the report. Pursuant to the order passed by this Court, as stated above, the heirs of the petitioners have taken possession of the shops on 18th February, 1999. Bengali Prasad Verma, the respondent No. 4 of Civil Misc. Writ Petition 38758 of 2003 he filed an application that he may be put back into the possession of the shops in question, which under the order of this Court dated 18th February, 1999 was handed over to the tenants. THE case of Bengali Prasad Verma was that he has purchased this shopping complex from respondent-landlord the erstwhile landlord who was party to the writ petition No. 7064 of 1981 and in this writ petition also through, registered sale deed dated 3rd August, 1998 and in fact he was in possession of the shop in question on the date the possession was delivered to the heirs of tenants, he had no knowledge regarding pendency of the present writ petition. To this application filed by Bengali Prasad Verma, the heirs the tenants have fifed a counter affidavit. This Court vide its order dated 13th July 1999 decided the controversy in the following terms: "the question is whether the transferee from respondent No. 1 i. e. (Bengali Prasad Verma) is entitled to the restoration of the possession of the shop in question. " Further questions were raised and answered by this Court vide its order dated 13 July, 1999 which is being reproduced as the same, is matter of record. Ultimately this Court held as under: "the applicant (Bengal Prasad Verma) has not stated anywhere the date on which the construction of he building was complete. The date of completion of the construction of the building has to be determined as given in Explanation (a) of Sub-section (2) of Section 2 of the Act, which provides that the construction of the building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction and in the case of a building subject to assessment, the date on which first assessment thereof comes into effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . " Ultimately, this Court vide its order dated 13 July, 1999 held that "as the writ petition was pending, he (Bengali Prasad Verma) is bound by all the orders passed in the writ petition and cannot escape his liability merely on the ground that he is purchaser of the property without, any knowledge of the proceedings of the writ petition. " This Court vide its order dated 13 July 1999 passed in earlier writ petition (7064 of 1981) directed as under: "the petitioners, however were to file an application for allotment under sub-section (2) of Section 24 of the Act. The petitioners have died. It is necessary for their heirs to file an application for allotment under Section 24 (2) of the Act and if so advised with an application to condone the delay in filing the application. In case they do not file any application or no allotment order is passed in their favour, they will be liable to re-deliver the possession of the shops. In case they file an application for allotment within three weeks from today, the District Magistrate shall pass a appropriate order keeping) in view the observations made above and in accordance with law within two months. The application is accordingly disposed of. "
(3.) THE landlord aggrieved by the aforesaid order filed an application for review of the aforesaid order dated 13 July, 1999, passed by this Court. During the pendency of the aforesaid review application. the tenants have filed an application for allotment as directed by this Court vide its order dated 13 July, 1999, along with the delay condonation application under Section 24 (2) of the Act. This application for review has been rejected by this Court. When the question regarding the maintainability of the allotment application, particularly in view of the fact that there was earlier an application and the application filed in pursuance of the directed issued by this Court will be termed as second application and its maintainability is dealt with and this Court has held as under: "firstly there is no bar in filing the second application when the first application has not been disposed of. Admittedly, the first application has not been disposed of and no order has been passed till today as the Magistrate has kept the proceedings in abeyance during the pendency of the writ petition. Secondly, the petitioners have died and the heirs are entitled to file another application under Section 24 (2) of the Act. It is contended that the heirs have no right to file an application under Section 24 (2) of the Act and secondly the heirs can file an application for substitution as provided under Rule 25 of the rules framed under the Act before the prescribed authority, within 30 days from the date of death of the party concerned. It is settled law of this Court that period prescribed for filing application for substitution under Rule 25 is directory and no mandatory. Secondly, the proceedings, remained suspended and in these circumstances the heirs of the petitioners can either, file an application for substitution which is alleged to be pending or file an application under Section 24 (2) of the Act. Thirdly, it may be noted that the District Magistrate has power to condone the delay, if any, in filing the application under Section 24 (2) of the Act. THE learned counsel for the petitioners then urged that the building was demolished on the basis of the compromise and if such building is demolished under a private agreement, the provision of Section 24 (2) is not applicable. He has placed reliance upon the decision in the case of Ram Dularey Gupta v. State of U. P. and others, 1981 Allahabad Rent Cases, 47. This decision is not applicable to the present case. THE parties had entered into compromise in the proceedings under Section 2t (1) (b) of the Act and the prescribed authority had passed the order under the aid provision. As the building was demolished under the orders passed by the prescribed authority the provision of Section 2 (2) is applicable. " With the aforesaid observation, the application for review of the order dated 13 July, 1999 was rejected by this Court vide its order dated 22 December, 1999.;