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1979 DIGILAW 1016 (ALL)

Shanti Devi v. III Addl. District Judge, Agra

1979-09-19

D.AGARWAL

body1979
ORDER D. Agarwal, J. - This is a petition under Art. 226 of the Constitution of India arising out of proceedings for release under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act. 2. The house in dispute is No. 4/316, Dhobiwala Ahata, Baluganj, Agra. The petitioner is the landlady, Respondent No. 3 Babu Khan is the tenant. The petitioner moved an application under S. 21 of the Act which was rejected by the prescribed authority by order dated 12th Feb., 1975. An appeal was filed under Section 22 of the Act. The III Additional District Judge, Agra, by his judgment dated 15th November, 1977 dismissed the appeal. The present petition has been filed challenging the orders dated 13th Feb. 1975 and 15th Nov. 1977. 3. Learned counsel for the petitioner has urged firstly that the finding that the application is not maintainable in law as the heirs of Chand Khan have not been brought on record is a finding erroneous in law. His next submission is that the approach of the court below in regard to the meaning of the word dilapidated as used in Section 21 (1) (b) of the Act is erroneous and the finding that the house is not in a dilapidated condition is vitiated in law. 4. I have heard learned counsel for the parties. The petitioner filed this release application against Babu Khan. In the written statement it was alleged by Babu Khan that his father Kaley Khan and Kaley Khans brother Chand Khan were in fact the tenants. Chand Khan had died and, therefore, it was necessary for the landlady to have brought the heirs of Chand Khan also on the record. There was no such issue framed by the trial Court. In appeal for the first time the appellate court has held that the application is not maintainable in law. Even if the finding of the appellate court is accepted that Chand Khan and Kaley Khan were the tenants of the property in dispute that would not be sufficient to hold that the application is not maintainable in law. Section 3, sub-cl. (a) of the Act defines the expression tenant. Even if the finding of the appellate court is accepted that Chand Khan and Kaley Khan were the tenants of the property in dispute that would not be sufficient to hold that the application is not maintainable in law. Section 3, sub-cl. (a) of the Act defines the expression tenant. According to the definition the tenant in relation to a building means a person by whom its rent is payable and on the tenants death in the case of residential building such only of his heirs as normally resided with him in the building at the time of his death. In accordance with this definition of the word tenant unless Bab a Khan had established that there were heirs of Chand Khan who were normally residing with him in the building at the time of his death the application could not have been dismissed as being not maintainable in law. If any heirs of Chand Khan were not residing with him at the time of his death then no question of impleading the (heirs of Chand Khan in the application arises. This aspect of the case has been omitted to be considered by the appellate Court and as such this finding is vitiated in law and the matter needs consideration in the light of the definition of the word tenant used in S. 3 (a) of the Act. 5. In regard to the second submission also the appellate court as well as the prescribed authority have very cursorily decided the question as to whether the house in question is in a dilapidated condition. The meaning to be given to the word dilapidated has been explained in R. D. Gupta v. Addl. District Judge 1976 Ren CJ 502 and in Smt. Chandrawati v. District Judge, Pauri, Civil Misc. Writ No. 7283 of 1978, decided by me on 20-7-1979 : (1979 All LJ 128). The Court has to consider the question of dilapidated condition in the light of the principles laid down in the case of R. D. Gupta and Smt. Chandrawati (supra). The court approached the case with the view that the expression dilapidated condition means in ruinous condition. Even if the property is not in a ruinous condition but if other ingredients are made out then too the property would become dilapidated. The court approached the case with the view that the expression dilapidated condition means in ruinous condition. Even if the property is not in a ruinous condition but if other ingredients are made out then too the property would become dilapidated. It is necessary in the interest of justice that the court should examine the case of the building being in a dilapidated condition in a proper manner after considering all the relevant evidence on record in respect of this question. In view of the above the second submission made by the learned counsel for the petitioner has also substance. 6. Learned counsel for the respondent has, however, urged that the finding recorded by the appellate court that the building is not in a dilapidated condition is a finding of fact which cannot be interfered with by thus court under Art. 226 of the Constitution. If a court does not correctly appreciate the meaning of the word dilapidated and appraises the evidence with that approach, the finding that the building is or is not dilapidated is not a finding of fact binding under Art. 226 of the Constitution of India. 7. In view of the above, I allow the petition, quash the order of the III Addl. District Judge, Agra, dated 15th Nov. 1977 and direct the Addl. District Judge to decide the appeal afresh in the light of the observations made above. The parties are directed to bear their own costs.