Janki Prasad v. IInd A. D. J. Moradabad — 1984 DIGILAW 132 (ALL)

Judgment B. N. Sapru, J. 1. THIS writ petition has been filed by Janki Prasad who is a tenant of a house situated in Mohalla Sarai Qazi, District Moradabad of which Smt. Kamla Dwivedi, respondent no. 3, is the landlady. The landlady purchased the said house under a sale deed dated 26-10-76. 2. ON 25-9-78 Smt. Kamla Dwivedi filed an application under section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for release of the house. In the release application she stated that she was in acute need of the house and further that the house was in a dilapidated condition and required demolition and re-construction. An objection was taken on behalf of Janki Prasad that the application was under section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) and as such was not maintainable as three years had not elapsed from the date of purchase. ON clarification being sought by the Prescribed Authority the landlady stated that the application was under section 21 (1) (b) of the Act. The Prescribed Authority treated the application as one under section 21 (1) (b) of the Act. He found that the building was dilapidated and required demolition. The Prescribed Authority dealing with the relief observed as follows: "In view of the findings recorded on points no. 1 and 2 (supra), the instant release petition deserves to be granted by leaving the parties to pay and bear their own respective costs but with the condition that the petitioner will provide the opposite party with two rooms of hot less than of the present size after re-building." Thereafter the operative order of the Prescribed Authority runs as follows; "The petition under section 21 (1) (b) of the Act is hereby granted by leaving the parties to pay and bear their own respective costs. The petitioner will provide the opposite party with two rooms not less than of present size in accordance with law after re-building. The premises in dispute will be so demolished or rebuilt that a room be got demolished first and rest to be under occupation of the opposite party and after providing newly built room to the opposite party, rest room will be demolished." 3. The premises in dispute will be so demolished or rebuilt that a room be got demolished first and rest to be under occupation of the opposite party and after providing newly built room to the opposite party, rest room will be demolished." 3. JANKI Prasad did not file any appeal against the order of the Prescribed Authority but the landlady Smt. Kamla Dwivedi preferred an appeal. The appeal came up for disposal before the II Additional District Judge, Moradabad being civil appeal no. 21 of 1980 Smt. Kamla Dwivedi v. JANKI Prasad. 4. IT was urged on behalf of the landlady that the condition imposed by the Prescribed Authority in regard to the manner in which demolition was to take place and the further direction as to the letting out of the two rooms to Janki Prasad was bad in law. The II Additional District Judge agreed with the contention on behalf of Janki Prasad that the conditions imposed by the Prescribed Authority were equitable and reasonable but held that no such conditions could be imposed under the law and accordingly allowed the appeal and set aside the conditions imposed on the landlady. In other words the application under section 21 (1) (b) stood allowed unconditionally. Aggrieved by the order of the appellate authority, Janki Prasad, the tenant, has filed the instant writ petition. Sri S. P. Mehrotra, appearing on behalf of the petitioner tenant has urged that the conditions imposed by the Prescribed Authority were just and reasonable and were also lawful. He urged in the first place that under section 21 (1) (b) of the Act, there is no provision dealing with the time frame within which demolition and reconstruction is to be done by the landlady. He urges that the Prescribed Authority can impose such conditions both in regard to the manner of demolition and in regard to the letting out of the reconstructed accommodation to the tenant as may be just and equitable on the facts of the case. He further urges that such a power can be read in by reading section 34 read with rule 22 framed under the Act. Rule 22 (f) confers the power under section 151 CPC on the District Magistrate, the Prescribed Authority or the appellate authority. He further urges that such a power can be read in by reading section 34 read with rule 22 framed under the Act. Rule 22 (f) confers the power under section 151 CPC on the District Magistrate, the Prescribed Authority or the appellate authority. However, section 34 (1) under which rule 22 has been framed, specifies the powers conferred in the Prescribed Authority or in appellate or revising authority under the Act while holding an enquiry or hearing an appeal or revision. Section 34 of the Act and Rule 22 of the Rules framed under the Act are both procedural and they do not enlarge the powers conferred on the Prescribed Authority or the appellate authority under section 21 (1) (a) or (b) of the Act. I am, therefore, unable to accept the argument of the learned counsel for the petitioner that the Prescribed Authority had powers to impose condition that he did under section 34 read with rule 22 (f) of the Rules framed under the Act. Section 21 (1) (b) does not provide any manner in which the landlord will demolish a building which is released in his favour. It further does not provide as to how and in what time period the landlord will take fresh constructions. Section 24 (2) deals with a case where an order of release has been made in favour of the landlord under clause (b) of sub-section (1) of section 21 and provides that the District Magistrate may, on an application being made in that behalf by the original tenant against whom a release order has been made under section 21 (1) (b) allot the building to the tenant on such rent as is prescribed in the section. It further provides that in the event of an order being made by the District Magistrate in favour of the tenant under section 24 (2) the tenant fails to take the building on lease or the tenant having taken the lease vacates it, the building shall be outside the operation of the Act for the period prescribed in sub-section (2) of section 2. It is well known that under the provisions of section 2 (2) a building is for a period of 10 years or 15 years as the case may be. It is well known that under the provisions of section 2 (2) a building is for a period of 10 years or 15 years as the case may be. If the interpretation suggested by the learned counsel for the petitioner is accepted, then a building which is newly constructed after demolition would, in the event of an order being made by the Prescribed Authority under section 21 (1) (b) of the Act, continue to be under the provisions of the Act notwithstanding the fact that a new constructions are outside the purview of the Act. The only exception of a new construction being retained within the purview of the Act is when an order under section 24 (2) of the Act is made. 5. I may here refer to some of the decisions cited by the learned counsel for the respondent in reply to the arguments of the learned counsel for the petitioner. The first decision relied upon by the learned counsel for the respondent is the case of Mohd. Umar v. Additional District Judge, 1978 U. P. Supplementary RCC 410. It was observed in paragraph 3 as follows :- "The last submission was that as the second proviso to Section 21 (1) empowers a Prescribed Authority to impose such other conditions as he thinks fit, the Prescribed Authority ought to have given a direction to the said respondents to let out one of the shops to the petitioner after the same were reconstructed. To my mind, such a condition was not required to be imposed by the Prescribed Authority while allowing the application. Subsection (2) of Section 24 of the Act secures the interest of the tenant for the purposes of demolition and reconstruction. Accordingly the third submission also has no substance. It will, however, be open to the petitioner to move the District Magistrate under the aforesaid provision, after the building has been reconstructed." 6. THIS authority lays down that the interests of the tenant, who has been evicted in a case where application under section 21 (1) (b) has been allowed, are fully protected by the provisions of section 24 (1) of the Act and further that in view of the aforesaid protection it is not open to the Prescribed Authority to impose conditions in regard to a building which is to be constructed after demolition. To the same effect is the decision reported in the case of Achhar Singh v. The District Judge, 1978 (U. P.) Supplementary RCC 482. In paragraph 16 of the judgment it is observed as follows : "Of course, in a case of release under clause (b) a tenant has a right under section 24 to re-enter. A direction of re-entry, however, could not be given at the stage when the application under clause (b) of Section 21 (1) is allowed. The reason being that under sub-section (2) of Section 24, the power to give such a direction has been conferred on a District Magistrate, whereas an application under Section 21 is decided by a Prescribed Authority who is different from a District Magistrate." 7. THIS authority has in so many words said that the power to release is vested in the Prescribed Authority whereas the power to direct a landlord to let an accommodation is vested in the District Magistrate. Consequently no direction to let out an accommodation can be made by the Prescribed Authority under section 21 (1) (b) of the Act. 8. SRI S. P. Mehrotra, learned counsel for the petitioner, then urged that under section 21 (1) of the Act there is power in the Prescribed Authority to order the eviction of a tenant from a building or any specified part thereof. He urges that in respect of two cases falling under clause (a) and (b) of sub-section (1) of Section 21 the power to direct eviction can be exercised either in respect of whole or part of the accommodation. He is correct in this argument. He then urges that what the Prescribed Authority did, was that he directed that a part of the building would first be demolished and reconstructed and then the remaining part of the building could be demolished and reconstructed and the direction was that the demolition should be carried out in such a manner that the tenant retain one room in his tenancy in the beginning and thereafter he got the second room also. Here again the difficulty in accepting the argument of SRI Mehrotra is that such an order implies in it a power in the Prescribed Authority to direct a landlord to let an accommodation to a tenant after demolition and reconstruction. Here again the difficulty in accepting the argument of SRI Mehrotra is that such an order implies in it a power in the Prescribed Authority to direct a landlord to let an accommodation to a tenant after demolition and reconstruction. The power to let, as seen earlier, vest in the District Magistrate and such a power cannot by process of interpretation vest in the Prescribed Authority. The learned counsel for the petitioner has argued that Rule 17 of the Rules framed under the Act requires that before an application of the landlord is allowed under section 21 (1) (b), he should satisfy certain requirements mentioned in the rule. His argument further is that the Prescribed Authority decided the application under section 21 (1) (b) at a particular point of time and he looks into the requirement of Rule 17 at that particular time. He urges that if the right of the landlord to reconstruct is a right which can be exercised at a much later time, then the provisions of Rule 17 would be defeated because the prices may have arisen much further in the meanwhile. This argument has no substance as the case has to be decided at some given point of time. 9. IN the result, I find no merits in the writ petition which is accordingly dismissed. The order of the appellate authority may be given effect to on the expiry of three months from today's date. The respondent is entitled to her costs. Petition dismissed.