Neutral Citation No. - 2025:AHC:115230 Court No. - 2 Case :- MATTERS UNDER ARTICLE 227 No. - 12216 of 2023 Petitioner :- Pavan Kumar Respondent :- Mahesh Chandra Varshney (Since Deceased) And 6 Others Counsel for Petitioner :- Syed Mohammad Nazar Bokhari Counsel for Respondent :- Pankaj Agarwal Hon'ble Saral Srivastava,J. 1. Heard learned counsel for the petitioner and Sri Pankaj Agarwal, learned counsel for the respondent. 2. By means of the present writ petition, the petitioner has assailed the order dated 18.02.2020 passed by the Prescribed Authority, Aligarh/Civil Judge (Senior Division), Aligarh releasing the disputed shop in favour of the respondent- landlord and the order dated 17.07.2023 passed by the Appellate Authority/District Judge, Aligarh affirming the order of the Prescribed Authority. 3. Challenging the aforesaid orders, learned counsel for the petitioner has contended that the needs set up by the landlord was that the shop in question was needed for establishment of business for himself as well as his son. It is contended that during the pendency of the release application, the original landlord died and after the death of original landlord, the son of the landlord has inherited the property of the landlord therefore, need of the landlord as set up in the release application has vanished, thus, in view of Section 21(7) of U.P. Act No.13 of 1972, the heirs of the landlord will have to set up the fresh need for release of the shop. The Prescribed Authority as well as the Appellate Authority has erred in law in not considering Section 21(7) of U.P. Act No.13 of 1972 while allowing the release application. 4. Per contra, learned counsel for the respondent would contend that Section 21(7) of U.P. Act No.13 of 1972 does not contemplate that after the death of the original landlord, his heirs have to set up a fresh plea establishing their bona fide need. It is contended that reading of Section 21(7) of U.P. Act No.13 of 1972 discloses that besides ground taken in the release application, the heirs of the landlord are entitled to take additional ground for release of the suit property and therefore, the Prescribed Authority as well as the Appellate Authority did not commit any illegality in allowing the release application. It is contended that the question as to whether Section 21(7) of U.P. Act No.13 of 1972 is attracted in the facts of the present case is a question of fact which can be determined on the basis of evidence on record and in absence of any pleading in the written statement in respect to the applicability of Section 21(7) of U.P. Act No.13 of 1972 in the present case, it is not open to the respondents to take such plea for the first time before this Court under Article 227 of the Constitution of India. 5. 5. Be that as it may, learned counsel for the petitioner does not dispute the fact that the petitioner did not set up a case in the written statement that in view of Section 21(7) of U.P. Act No.13 of 1972, after the death of original landlord the need stated in the release application has vanished and the heirs of the landlord have to set up fresh case establishing their bona fide need for release of the suit property. 6. Though in the instant case Section 21(7) of U.P. Act No.13 of 1972 is not attracted of the reasons delineated in later part of the judgement, but even if for the sake of argument if the contention of learned counsel for the petitioner is accepted, the question as to whether Section 21(7) of U.P. Act No.13 of 1972 is attracted or not in the fact of the present case is a question of fact inasmuch as after the death of landlord whether the need set up in the release application has vanished and the legal heirs have to set up a fresh case establishing their need in respect to the suit property can be adjudicated on the basis of evidence. In such view of the fact, the petitioner cannot take the aforesaid plea for the first time before this Court under Article 227 of the Constitution of India. 7. Even otherwise for better appreciation of argument of learned counsel for the petitioner, Section 21(7) of U.P. Act No.13 of 1972 is reproduced herein below:- "21. Proceedings for release of building under occupation of tenant- (7) Where during the pendency of an application under clause (a) of sub-section (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased." 8. Perusal of Section 21(7) of U.P. Act No.13 of 1972 reveals that it gives additional ground to the heirs of the landlord to set up their need in addition to the need set up in the release application. 9. From reading of Section 21(7) of U.P. Act No.13 of 1972, it cannot be inferred that after the death of original landlord, the legal heirs have to set up their need afresh for release of the suit property and need of the landlord set up in the release application is not to be seen. 10. In such view of the fact, Section 21(7) of U.P. Act No.13 of 1972 in the facts of the present case is not attracted. 11. For the reasons given above, the petition lacks merit and is dismissed. Order Date :- 16.7.2025 SS Digitally signed by :- SUNIL KUMAR SHARMA High Court of Judicature at Allahabad