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1980 DIGILAW 193 (ALL)

Nisar Ahmad v. 4th Additional District Judge

1980-02-08

A.N.VARMA

body1980
ORDER A. N. Varma, J. -This is a tenants petition which is directed against the concurrent orders passed by the respondents Nos. 1 land 2 allowing an application for release of a shop of which the petitioners are the tenants and respondents Nos. 3 and 4, the landlords under Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. 2. The facts relevant for the determination of the issues involved in the petition are these: The respondents Nos. 3 and 4 purchase-ed the shop in dispute from its previous owner under a registered sale-deed dated 9-5-1975. The petitioners have been in occupation of the shop in dispute as tenants since before the purchase of the property by the respondents Nos. 3 and 4. Immediately, after the purchase of the property the respondents Nos. 3 and 4 moved an application which was headed as one under clause (b) of Section 21 (1) of U. P. Act No. XIII of 1972. In the body of the application it was asserted that the building in question was in a dilapidated condition and was required for being demolished and reconstructed. It was also asserted that the landlords themselves intended to occupy the shop after it had been reconstructed for their own personal use. The application was contested by the petitioners who pleaded that the application was barred by the first proviso to Section 21 (1), inasmuch as, the landlords had filed the application under Section 21 within three years of the date of purchase of the property which was prohibited under the first proviso to Section 21 (1). It was also asserted in the objection that the building was not bona fide required by the landlords and that in any case, the building was not required to be reconstructed having regard to its condition. The Prescribed Authority held that the the building was in dilapidated condition and was required for being demolished or reconstructed. The Prescribed Authority treated the application as one under clause (b) of Section 21 (1) of the aforesaid Act and allowed it on the aforesaid finding. Having found that the landlords were entitled to the release of the building under clause (b of Section 21 (1) the Prescribed Authority did not consider it necessary to go into ,the issue of relative hardship likely to be caused; to the tenants. Having found that the landlords were entitled to the release of the building under clause (b of Section 21 (1) the Prescribed Authority did not consider it necessary to go into ,the issue of relative hardship likely to be caused; to the tenants. The Prescribed Authority on the aforesaid findings allowed the application. The petitioners appealed. The appellate court affirmed the findings of the Prescribed Authority and dismissed the appeal. The learned counsel for the petitioner urged that the application was in substance one under clause (a) of Section 21 (1) of the aforesaid Act and having admittedly been filed within three years of the purchase of the accommodation in dispute by the present landlords from the previous owners, it was barred by the first proviso to Section 21. The application was headed under clause (b) of Section 21 (1) in order to circumvent this proviso. The Courts below have therefore, erred in directing the release of the accommodation in dispute in favour of the respondents. Nos. 3 and 4 treating the application as one covered by clause (b) to Section 21 (1). 3. Having heard learned counsel for the parties, I find no merits in this petition. 4. A reading of the application of the respondents Nos. 3 and 4 leaves no manner of doubt that all the ingredients for application of clause (b) to Section 21 (1) have been clearly and explicitly mentioned therein. The mere fact that the landlords also claimed in the application that they required the reconstructed shop for their own use did not deprive the landlords of the right to rely on clause (b) of Section 21 (1) of the aforesaid Act. The ingredients of clause (b) of Section 21 (1) of the aforesaid Act having been clearly and explicitly pleaded the authorities did have jurisdiction to direct the release of the shop without reference to the question whether the shop in dispute was also required for being occupied by the landlords themselves after it had been reconstructed. The bar of first proviso to Section 21 (1) would have been attracted only if the authorities below had chosen to allow the landlords application under clause (a) also. Neither of the two respondents Nos. 1 and 2 has, however, allowed the application of the respondents Nos. The bar of first proviso to Section 21 (1) would have been attracted only if the authorities below had chosen to allow the landlords application under clause (a) also. Neither of the two respondents Nos. 1 and 2 has, however, allowed the application of the respondents Nos. 3 and 4 under clause (a) of Section 21 (1) In my opinion, therefore, the orders passed by the respondents Nos. 1 and 2 cannot be challenged on the mere ground that the landlords application under Section 21 also contained some averments which might have given the impression that the petitioners were also relying on clause (a) of Section 21 (1) of the Act. 5. Learned counsel for the petitioner placed reliance on the decisions of this court reported in 1976 U. P. Rent C. C. 268 and 1976 All. WC 764 (at p, 765 para 3), in support of his submission that there is a marked distinction between the cases falling under clauses (a) and (b). The law laid down in these-two cases is with respect entirely unexceptionable. There can be no dispute; that considerations for applying clauses (a) and (b) differed. In a case falling under clause (a), the emphasis is on the bona fide requirement of landlord for occupation by himself, in a case covered i by clause (b), it is the condition of the building which is of prime importance. In a case which is covered by clause (b), the question whether the landlord requires it for himself is of no relevance. The view which I am taking is in no way contrary to or inconsistent with the view taken by this court in the aforesaid two decisions. On a true and proper construction of the pleadings of the respondents Nos. 3 and 4 it is clear that the case of the landlords was covered by clause (b) of Section 21 (1) also. That being so, the authorities had jurisdiction to entertain the application of the respondents Nos., 3 and 4 and to allow it on the finding that the building is in a dilapidated condition requiring to be demolished and reconstructed. 6. Learned counsel for the petitioner also contended that the Prescribed Authority committed an error in not making a local inspection of the building as requested. 6. Learned counsel for the petitioner also contended that the Prescribed Authority committed an error in not making a local inspection of the building as requested. The learned District Judge has considered this complaint of the petitioners and has rightly observed that no prejudice can be said to have been caused to the petitioners by the absence of local inspection. In any case, if there was the slightest likelihood of the petitioners suffering any prejudice on account of the Prescribed Authority not having made a local inspection, the petitioners should have asked the learned District Judge himself to make a local inspection. No such request was admittedly made to the learned District Judge. I am, therefore satisfied that the decisions of the courts below have not been affected in the slightest degree by the absence of a local inspection by the Prescribed Authority. 6A. Learned counsel lastly generally-urged that there has not been compliance with the provisions of Rule 17 of the Rules framed under the aforesaid Act. There is no substance in this argument. From a perusal of the judgment under challenge as well as the material brought on the record of this petition, it is clear that Rule 17 has been fully complied with. 7. In the result, the petition fails and is dismissed, There will be no orders as "to costs. The petitioners are, however, granted four months time to vacate the accommodation in dispute. They will hand over vacant possession of the shop an dispute to the landlord within a period of four months.