Sita Ram v. District Judge, Gorakhpur — 1988 DIGILAW 475 (ALL)

ORDER S.D. Agarwala, J. - This is a petition under Article 226 of the Constitution of India arising out of proceedings under S. 21(l)(a) and (b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). 2. The property in dispute is a house situated in Mohalla Mirzapur alias Hasanpur district Gorakhpur. The house is owned by Sita Ram and Bhagwati Prasad. At the time of the purchase, Bhagwati Prasad is the owner of the northern portion of the house, which he purchased for a sum of Rs. 2000/-. Sita Ram, the petitioner before this Court purchased the southern portion being 1060 square feet for a consideration of Rs. 3000/- on 8th Aug. 1970. In fact, separate specified portions were purchased by Sita Ram as well as by Bhagwati Prasad from the erstwhile owner. After the purchase a joint application was moved by both Sita Ram and Bhagwati Prasad under S. 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred as the old Act.) This old Act was repealed and consequently, the application was converted into an application under S. 21(1)(a) and (b) of the Act. This application was dismissed by the Rent Control and Eviction Officer under the old Act on 13th June, 1972. Aggrieved by the said decision, an appeal was filed before the District Judge, Gorakhpur under S. 22 of the Act as by then, the new Act came into effect from 15th July, 1972. The appeal was also dismissed on 8th Oct. 1976. Bhagwati Prasad did not challenge the decision of the District Judge in respect of his specified portion, but Sita Ram filed a writ petition 1895 of 1976 in this Court challenging the aforesaid decision of the District Judge. This petition was allowed by this Court on 7th Aug. 1978. The judgment of the District Judge dated 8-10-1976 was set aside and he was directed to decide the appeal afresh in accordance with law in the light of the observations made in that petition. 3. After remand, when the matter came up before the District Judge, he remanded the matter again to the Prescribed Authority for deciding the release application. 4. The Prescribed Authority dismissed the application of the petitioner and the appeal filed against the said judgment was also dismissed by the appellate authority. 3. After remand, when the matter came up before the District Judge, he remanded the matter again to the Prescribed Authority for deciding the release application. 4. The Prescribed Authority dismissed the application of the petitioner and the appeal filed against the said judgment was also dismissed by the appellate authority. The petitioner again second time came to this Court challenging the decision of the appellate authority and filed Writ Petition No. 6736 of 1979. The petition came up for hearing before Hon'ble A.N. Varma, J. who by his judgment dated Oct.-4, 1980 upheld the findings of the appellate authority so far as the application under S. 21(1)(a) of the Act was concerned, bui was further of the view that the appellate authority had not properly considered the petitioners' application under Cl. (b) of the Act. The petition was accordingly allowed and the order of the appellate authority was quashed and the appellate authority was directed to dispose of the petitioners' application in regard to Cl. (b) of the Act. 5. After remand, the matter was again examined. Again, the District Judge instead of deciding the appeal, remanded the matter to the Prescribed Authority. The Prescribed Authority by its judgment dated 31st May, 1983, allowed the petitioners' application under S. 21(1)(b) of the Act. Aggrieved by the said decision, the respondents-tenants filed an appeal under S. 22 of the Act. This appeal was allowed by the District Judge, Gorakhpur by his order dated 12th Oct. 1983. The petitioner has now challenged the orders dated 31st May, 1983 and 12th Oct. 1983 by means of the present petition. 6. I have heard Sri R.N. Bhalla learned counsel for the petitioner and Sri Swaraj Prakash, learned counsel for the tenants respondents. Learned counsel for the petitioner has contended, firstly that the view taken by the appellate authority that the application under S. 21(1)(b) of the Act is not maintainable, is a view not sustainable in law. His second submission is that the finding in regard to the question as to whether the property in dispute is in dilapidated condition or not, is also manifestly erroneous inasmuch as the appellate authority ignored to consider the material portion of the report of the local inspection made by the Prescribed Authority. His second submission is that the finding in regard to the question as to whether the property in dispute is in dilapidated condition or not, is also manifestly erroneous inasmuch as the appellate authority ignored to consider the material portion of the report of the local inspection made by the Prescribed Authority. Lastly it has been urged by the learned counsel that the provisions of R. 17 of the Rules framed under the Act have not been complied with and the finding to the contrary recorded by the appellate authority, is perverse. 7. It is not disputed that the petitioner Sita Ram had purchased a specified portion of the building in dispute, which was under the tenancy of the tenant respondents. The matter came to this court and ultimately, by a judgment dated 4th Oct. 1980 in Writ Petition No. 6736 of 1976, this Court directed that the application under S. 21(1)(b) of the Act moved by the petitioner be considered on merits in accordance with law. It was not urged before this Court that the said application was not maintainable. The appellate authority acted illegally and with material irregularity in exercise of its jurisdiction in ignoring the direction of this Court and holding that the application itself was not maintainable in law. 8. Section 21(1)(b) of the Act is as follows : 21(1). The Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely : (a) ..................................... (b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction : 9. From the above prevision, it is clear that the Prescribed Authority could order eviction of a tenant from the building under tenancy or any specified part thereof. The petitioner is the owner of a specified part of the said property and consequently, the application was clearly maintainable under S. 21(1)(b) of the Act. Even if the petitioner did not have a specific part, then, too, an application for release was originally made by both the petitioner as well as Bhagwati Prasad and the Prescribed Authority is authorised under S. 21 of the Act to release either the whole building or a specified part, thereof. Even if the petitioner did not have a specific part, then, too, an application for release was originally made by both the petitioner as well as Bhagwati Prasad and the Prescribed Authority is authorised under S. 21 of the Act to release either the whole building or a specified part, thereof. This is a clear legislative mandate and the question of splitting of the tenancy is wholly irrelevant to the question of considering an application for release for a specified part of the building under tenancy. The application is clearly maintainable even in respect of a part of a building under tenancy. 10. Learned counsel for the respondents has urged that Cl. (b) of S. 21 of the Act does not apply to a case where there are more than one landlord, a part of the building can be released only when there is only one landlord. In my opinion, this argument is wholly misconceived. The question whether there is one landlord or not is not the real question to be determined. The question to be determined is that which part of the property is to be released. The Legislature permitted the Prescribed Authority to release a specified part of the building under tenancy. It is not relevant whether the said tenancy was arrived at between one or more landlords or between one or more tenants. 11. In view of the above, I am of the opinion that the view taken by the appellate authority that the application under S. 21(1) (b) of the Act is not maintainable, is clearly manifestly erroneous. The submission made by learned counsel for the petitioner is, consequently, well founded. 12. In regard to the second submission, the Prescribed Authority had made a local inspection of the property in dispute and after examining the report and other evidence on the record, came to.the conclusion that the property in dispute was in a dilapidated condition. 13. The appellate authority has, no doubt considered the report of local inspection made by the Prescribed Authority, but has not considered the most material part namely, that the tin roof of the property in dispute is supported by four ballies, which are giving support to the roof itself. 13. The appellate authority has, no doubt considered the report of local inspection made by the Prescribed Authority, but has not considered the most material part namely, that the tin roof of the property in dispute is supported by four ballies, which are giving support to the roof itself. From the report, it is clear that the tin roof is intact because of the four supporters in the shape of ballies put under the said roof and that the entire construction is in a very bad shape. The circumstance which weighed with the appellate authority was that though the application was made in the year 1972 and since still the property was standing, therefore, it could not be held to be in dilapidated condition. This is a very perverse view. The property which is in dilapidated condition can continue to remain in such a condition for a very long period, but from this circumstance itself it cannot be said that the property is not in dilapidated condition. Since the finding in regard to the question of being in dilapidated condition, is based on ignoring the material portion of the report of the local inspection made by the Prescribed Authority and also since it is based on irrelevant consideration mentioned above, in my opinion, this finding in regard to the dilapidated condition is vitiated in law and is liable to be set aside. 14. In regard to the last submission made by learned counsel, R. 17 of the Rules framed under the Act is as follows : "17(1). Before allowing an application for release of a building under S. 21(1)(b) on the ground that it is required for purposes of demolition and new construction, the Prescribed Authority shall satisfy itself : (i) that the building required demolition; (ii) that a proper estimate of expenditure over the proposed demolition and new construction has been prepared; (iii) that a plan has been duly prepared and conforms to the bye-laws or regulations of the local authority or other statutory authority under any law in that behalf for the time being in force; and (iv) that the landlord has the financial capacity for the proposed demolition and new construction. So far as the first condition is concerned, once the finding is that the building is in dilapidated condition, it is obvious that the building would require demolition and as such, on the finding arrived at by the Prescribed Authority that the building was in dilapidated condition, it cannot be said that the first condition was not complied with. 15. The second condition is in regard to the submission of the proper estimate of expenditure over the proposed demolition and new construction. The Prescribed Authority has clearly held in the order that the petitioner has submitted such an estimate. The appellate authority has not accepted this estimate simply on the ground that since the estimate was prepared in the year 1972 when the application was filed and, consequently, this estimate is not correct. This is not contemplated by law. The landlord has to file an estimate only at the time when he files an application under S. 21(1)(b) of the Act. By the mere fact that the application is pending in the Court of law and delay is caused in its disposal, the estimate cannot cease to be a valid estimate in law. If this view is accepted, then in no case it is possible for any landlord to submit a proper estimate because after the estimate is filed, certain period is bound to elapse before the application is decided and the estimate is liable to change by lapse of time. Consequently, in my opinion, the view taken by the appellate authority that the estimate was filed along with the application cannot be accepted. The view is wholly perverse in law. 16. The next requirement under R. 17- aforesaid has also been fulfilled as the plan duly prepared and conforming to the bye- laws or regulations of the local authority or other statutory authority under any law in that behalf for the time being in force has been filed in support of the release application. The appellate authority has taken the view that the plan should be duly sanctioned. This is not required by law. The only requirement is that the plan has to be duly prepared and which should conform to the bye-laws or regulations of the local authority. Sanction of the plan is a subsequent act and the legislature did not make it incumbent upon the landlord to get it sanctioned before filing a release application. This is not required by law. The only requirement is that the plan has to be duly prepared and which should conform to the bye-laws or regulations of the local authority. Sanction of the plan is a subsequent act and the legislature did not make it incumbent upon the landlord to get it sanctioned before filing a release application. Judicial notice has to be taken of the fact that plans are normally not sanctioned expeditiously. They take considerable time for the said purpose and it was because of this factor that the legislature only contemplated that the plan has been duly prepared in accordance with the bye- laws and regulations of the local authority and did not provide that it should have been duly sanctioned. This view to the contrary taken is also manifestly erroneous. 17. In regard to the fourth condition, also, the Prescribed Authority has clearly held that the landlord has proved that he has the financial capacity to the proposed demolition and new construction. The appellate authority has not considered this aspect at all and has presumed that this condition has not been complied with. 18. From the record, all the four conditions laid down in R. 17 of the Rules framed under the Act are fully complied with. The view to the contrary taken by the appellate authority is, consequently manifestly erroneous. 19. In the result, the writ petition is allowed. The order dated 12th Oct. 1983 is quashed and the order dated 31st May, 1983 passed by the Prescribed Authority is restored. Parties are directed to bear their own costs.