Buniyad Ali v. Rafiq Ahmad — 1980 DIGILAW 124 (ALL)

JUDGMENT K.C. Aggarwal, J. - These two connected writ petitions arise from a decision of III Additional District Judge, Bijnor dated 23rd March, 1978. By the said order, the appeal of Buniyad Ali (hereinafter referred to as the landlord) was partly allowed and the judgment of the prescribed Authority was modified. 2. Buniyad Ali, the landlord, filed an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 for release of the disputed premises consisting of two Khans - one outer and one inner. The inner Khan consisted of two parts the eastern and western with a wall in between. The shop also has a chabutra in its front. To the south of the front portion is the house of landlord consisting of one room and Dalan in the ground floor apart from kitchen, latrine, etc. There is a staircase and some construction in this upper storey also. The disputed premises was purchased by the landlord on March 15, 1971. He, there fore, filed an application under Section 3 of U.P. Act No. 3 of 1947 for permission to bring suit for ejectment on the ground of his personal need. Later on, this was amended and converted into one under Section 1 of U.P. Act No. 13 of 1972. The application had been filed on two grounds. One of them was the personal requirement of the landlord and the second was that the building was in a dilapidated condition and was required to be demolished and reconstructed. 3. The application was contested by Rafiq Ahmad, the tenant. He alleged that the two grounds taken in the application under Section 21(1)(a) and (b) were unfounded and that the landlord was not entitled to release under any one of these two provisions. He claimed that the landlord had sufficient accommodation in his occupation and that the disputed premises was not required by him. 4. The Prescribed Authority held that the shop in dispute was not in a dilapidated condition and also that the need of the landlord was not bonafide. Accordingly, he dismissed the application. Being aggrieved, the landlord preferred and appeal. The appellant authority found that the need of the landlord was not bonafide and further that the application had been filed under Section 21(1)(a) with a view to feed the grudge which the landlord entertained against the tenant. Accordingly, he dismissed the application. Being aggrieved, the landlord preferred and appeal. The appellant authority found that the need of the landlord was not bonafide and further that the application had been filed under Section 21(1)(a) with a view to feed the grudge which the landlord entertained against the tenant. According to the appellate authority, the background of filing the application for release was not the genuine and bonafide requirement of the landlord but the litigations which took place in various Courts between the petitioner landlord and respondent No. 3. He, however, found that the two back khans of the shop were in a dilapidated condition and that they were required to be demolished and reconstructed. On this finding, the appellate authority allowed the prayer for release under clause (b) of sub-section 1 of Section 21 and directed for the release of the back two khans of the disputed shop to the petitioner landlord. He, however, further gave a direction to the petitioner, landlord shall reconstruct the two khans within six months and thereafter, to let out the same to the tenant along with the front khans which already the tenant had on a monthly rent of Rs. 30. Aggrieved, the landlord filed the Writ Petition No. 5797 of 1978. Since the tenant was also dissatisfied with the order of the appellate authority releasing the premises under clause (b) of sub-section(1) of Section 21, the tenant preferred Writ Petition No. 8733 of 1978. 5. I will first take up the landlord petitioner's Writ Petition No. 5797 of 1978. In this case, the learned counsel's main argument was that as the appellate authority found that the house was in a dilapidated condition it should have made a release order in respect of the whole and should not have confined it to the khans situated in the back. In this connection, counsel also urged that the walls of the two khans were common and developed crack and, therefore, if only the back portion was demolished the front portion could not stand independently of the back portion. 6. The submission made cannot be accepted. Under Section 21(1)(a), the Prescribed Authority is authorised to order the eviction of a tenant from the building under tenancy or any specified part thereof, if it is satisfied that any of the grounds is stated in clauses (a) and (b) had been made out. 6. The submission made cannot be accepted. Under Section 21(1)(a), the Prescribed Authority is authorised to order the eviction of a tenant from the building under tenancy or any specified part thereof, if it is satisfied that any of the grounds is stated in clauses (a) and (b) had been made out. It would, thus, appear that the order of eviction of a tenant can be made from the whole of the accommodation let out to him or a part thereof on the fulfilment of any of the two grounds given in clauses (a) and (b). Just as in a case of clause (a), a release order could be made regarding a part of the premises similarly under clause (b) as well as the release can be made in respect of a part. For granting release under clause (b), it is not necessary that a landlord should be given release in respect of the whole. 7. Now I am led to consider the question whether on the facts and in the circumstances the appellate authority was justified in making an order of release only in respect of a part. Before dealing with this aspect, it may be stated that the question as to whether a part of the premises was dilapidated and was capable of being given possession to the landlord for demolition and reconstruction by separating the other portion is one of fact. This question is to be decided on the evidence of the parties. In the instant case, the appellate authority considered the evidence as well as the Commissioner's reports submitted in the appeal as well as before the Prescribed Authority. The appellate authority itself made the inspection of the building. After having examined the entire record, the appellate authority took the view that out of the two portions of the disputed shop which had been described as outer Khans and inner Khan, the inner Khan was in a dilapidated condition and that possession of the same could be given to the landlord for making reconstruction. In his own local inspection, the appellate authority found that the roofs of the outer Khan were in good condition whereas that of the inner portion was depressed and required to be demolished. In his own local inspection, the appellate authority found that the roofs of the outer Khan were in good condition whereas that of the inner portion was depressed and required to be demolished. Hence, the submission of the learned counsel for the petitioner that the two portions could not be separated and that on the finding arrived at, the petitioner was entitled to the release of the whole of the premises, cannot be accepted. 8. Counsel's next argument was that the appellate authority had no jurisdiction under the law either to direct the petitioner to make construction within six months or to let out the portion of the shop after reconstruction to respondent No. 1 at a monthly rent of Rs. 30. He urged that the direction given by the appellate authority is in contravention of the provisions of the Act and as such the same is liable to be quashed. Section 24 prescribes that a tenant who has been evicted under Section 21 of the Act or on appeal under Section 22, may be reinstated. This section deals with two types of cases. The one provided by sub-section (1) is where release is based on clause (a) of sub-section (1) and the other where the release is based on clause (b) of the same sub-section of Section 21. The present is a case under clause (b) of sub-section (1). To this class sub-section (2) of Section 24 would apply. This entitles a tenant to file an application to the District Magistrate to allot him a building or such one of them as the District Magistrate after considering his requirement, thinks fit. Sub-section (2) of Section 24 makes the provision about the liability of rent of such building. This rent would be an amount equivalent to one per cent of the cost of construction thereof. The argument of the petitioner's counsel was that after the building had been reconstructed, the tenant had only a right to apply to the District Magistrate under sub-section (2) of Section 24 for direction to let out the new building. He urged that by giving a direction to the effect stated above, the appellate authority usurped jurisdiction which did not belong to him. 9. He urged that by giving a direction to the effect stated above, the appellate authority usurped jurisdiction which did not belong to him. 9. It is true that a direction of the type given by the Additional District Judge is not permissible under the Act No. XIII of 1972 but since on the facts of the present case, I am of the opinion that the said direction is not unjust and is meant for the benefit and advantage of both the parties, the same is not required for reconstruction is a part and parcel of the outer Khan without which the tenant could not do his business. Accordingly, a direction to the landlord to make reconstruction with six months is imminently just in the circumstances. Hence. I do not think the present a fit case for granting any relief to the landlord on this count. 10. This disposes of the argument raised for invoking clause (a) of sub-section (1) of Section 21. The only other argument is of clause (a) of sub-section (1) of Section 21. So far as the personal requirement of the landlord is concerned, the two courts below concurrently found that the application had been filed by the landlord with an ulterior motive to wreck vengeance and the landlord does not stand in bonafide requirement of the premises. The finding of bonafide requirement is one of fact. The test which has to be applied is objective and not subjective one. Hence, mere assertion of the landlord is not enough. 11. Coming to the writ petition of the tenant, the argument raised was that appellate authority committed an error in releasing the upper portion of the shop in dispute in favour of the landlord. Counsel urged that the appellate authority having found that the landlord does not stand in need of the building in dispute, should not have made an order for the release of the upper portion. Since substantial justice has been done to the parties under the impugned order, I am not prepared to set aside the said direction as well. In view of the above, it is not necessary to examine the merits of the case. Assuming that the petitioner's counsel is right, I do not consider the present is a case for exercising power conferred by Article 226 of the Constitution. 12. In the result, the two writ petitions fail and are dismissed. In view of the above, it is not necessary to examine the merits of the case. Assuming that the petitioner's counsel is right, I do not consider the present is a case for exercising power conferred by Article 226 of the Constitution. 12. In the result, the two writ petitions fail and are dismissed. No order as to costs.