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2005 DIGILAW 593 (ALL)

Naeem Ahmad v. Abdul Majeed

2005-03-29

ANJANI KUMAR

body2005
ANJANI KUMAR, J. ( 1 ) THE brief facts leading to filing of the present writ petition under Article 226 of the constitution of India are that the petitioner is the tenant of the shop in dispute which is situated in a building which is purchased by the respondent-landlord on 1st December, 1993, from its erstwhile owner. The landlord immediately after purchase of the aforesaid building issued a notice to the petitioner that since he has purchased the building, in which the shop in dispute is situated, the rent shall be paid by the petitioner-tenant to the respondent-landlord. The petitioner on receipt of the notice sent the rent for the month of December, 1993, January and February, 1994, which was not accepted by the landlord. Therefore, the tenant started depositing the rent under Section 30 of U. P. Act No. 13 of 1972 (hereinafter referred to as the Act ). On 30th May, 1995, the landlord filed an application purporting to be an application under Section 21 (1) (b) of the Act for release of accommodation on the ground that the building in which the shop is situated is in a dilapidated condition and requires demolition and reconstruction, therefore, the same should be released in favour of the landlord. During the pendency of the aforesaid application an offer was made by the landlord that after reconstruction of the building the petitioner-tenant will be put back into possession of a shop of the same dimension on the same rent which he is paying today that is on the date when the offer was made. This offer was accepted by the petitioner-tenant. During the pendency of the application referred to above which has been registered as P. A. Case No. 5 of 1995. The landlord filed another application under Section 21 (1) (a) of the Act after expiry of three years period from the purchase of the building by the landlord which was purchased on 1st December, 1993, which has been registered as P. A. Case No. 1 of 1997 for release of the shop in dispute on the ground that the landlord requires the shop in dispute and same be released in his favour as he will demolish the building in dispute and reconstruct the shops for settling down his sons in business who are still unemployed. It is further stated by the landlord that the tenant is carrying on business of repairing radios etc. in the shop in dispute and that his residential accommodation is situated in the same locality wherein a shop is available in the residential building of the tenant where he can shift his business of repairing radios etc. without any hardship. ( 2 ) BOTH the applications were contested by the tenant. Parties exchanged their pleadings and evidence before the prescribed authority. Before the prescribed authority the tenant, with regard to application under Section 21 (1) (b) has stated that the building is neither in dilapidated condition nor requires demolition and reconstruction as alleged by the landlord and that the landlord has not demonstrated that he has complied with the provision of Rule 17 of the Rules framed under the provisions of U. P. Act No. 13 of 1972. Thirdly the landlord has not demonstrated that his financial condition is such that he can go with the proposed construction. Therefore, the application under Section 21 (1) (b) is liable to be dismissed. The prescribed authority on the question of non-compliance of sub-rule (4) of Rule 17, namely financial capacity of the landlord, has held after relying upon the decision of this Court in Kailash Devi v. IIIrd Additional District Judge, Kanpur, ARC 392, wherein this Court has laid down that it is not necessary for the landlord that he should demonstrate that he has collected money or that he has the ready money for the proposed construction. Therefore, the allegation of the tenant that sub-rule (4) of Rule 17 has not been complied with by the landlord, is not attracted in the present case. As far as question of other sub-rules are concerned the landlord has filed evidence that he has got sanctioned plan from the concerned local authority and has also got permission to demolish and reconstruct the building from the local authority concerned. Therefore, this plea is also not available to the petitioner-tenant. ( 3 ) ON the question of buildings being in dilapidated condition the tenant has argued that there is no material on the record on the basis of which any reasonable person can come to the conclusion that the building in dispute is in dilapidated condition and requires demolition and reconstruction. ( 3 ) ON the question of buildings being in dilapidated condition the tenant has argued that there is no material on the record on the basis of which any reasonable person can come to the conclusion that the building in dispute is in dilapidated condition and requires demolition and reconstruction. The prescribed authority relied upon the report of the Amin Commissioner who has given report that the building is in dilapidated condition and requires demolition. As against this the tenant has filed affidavits of two witnesses who are neither expert on the subject nor are recognized by any authority to submit report regarding the condition of the building being dilapidated or that building requires demolition and reconstruction. In this view of the matter the prescribed authority after considering the evidence of both the sides has arrived at a conclusion that the building is in dilapidated condition and requires reconstruction after demolition. ( 4 ) THE tenant has also submitted that two applications, one under Section 21 (1) (a) and another under Section 21 (1) (b) of the Act, are not maintainable in the eyes of law. This argument has been considered by the prescribed authority and the prescribed authority relied upon the decision of this Court in Ravi Prakash v. IVth Additional District Judge, Saharanpur and Ors. , 2001 (3)AWC 2168 : 2001 (1) ARC 242, wherein this Court held that this argument is not acceptable. It is open even for an applicant to seek relief in the alternative and the application cannot be said to be not maintainable on this ground that two applications have been filed, one under Section 21 (1) (a) and another under Section 21 (1) (b) of the Act. Thus, application under Section 21 (1) (b) was allowed. While considering the application under Section 21 (1) (a) of the Act, the prescribed authority has arrived at the conclusion that the need to settle unemployed sons has been held to be bona fide by series of decisions of this Court, therefore, the need set up by landlord was held to be bona fide. While considering the application under Section 21 (1) (a) of the Act, the prescribed authority has arrived at the conclusion that the need to settle unemployed sons has been held to be bona fide by series of decisions of this Court, therefore, the need set up by landlord was held to be bona fide. On the question of comparative hardship the prescribed authority relied upon the undertaking given by the landlord in Case No. 5 of 1995 which is application under Section 21 (1) (b) wherein the landlord has given undertaking that after reconstruction he will hand over a shop of the same dimension to the petitioner-tenant. Thus, the prescribed authority allowed the application under Section 21 (1) (a) also and directed release of the accommodation in question in favour of the landlord. Both the applications have been allowed by the prescribed authority by the common judgment dated 3rd September, 2002. ( 5 ) AGGRIEVED thereby the petitioner-tenant preferred an appeal under Section 22 of the Act before the appellate authority. Before the appellate authority the same arguments were advanced as were advanced before the prescribed authority. The appellate authority after considering the arguments advanced on behalf of the appellant-tenant has found that the applications under sections 21 (1) (a) and 21 (1) (b) are maintainable and the appellate authority relying upon the evidence adduced by the parties in P. A. Case No. 5 of 1995 which was leading case before the appellate authority affirmed the findings arrived at by the prescribed authority. On the question of compliance of Rule 17 of the Rules the appellate authority maintained the order passed by the prescribed authority. Thus, the appeal, so far as it relates to the order passed on the application under Section 21 (1) (b) of the Act by the prescribed authority, has been dismissed. On the question of application under Section 21 (1) (a) the appellate authority maintained the findings regarding the need being bona fide which was for settling down the unemployed sons. Thus, the appellate authority maintained the order passed by the prescribed authority so far as the bona fide need is concerned. On the question of application under Section 21 (1) (a) the appellate authority maintained the findings regarding the need being bona fide which was for settling down the unemployed sons. Thus, the appellate authority maintained the order passed by the prescribed authority so far as the bona fide need is concerned. On the question of comparative hardship the appellate authority again maintained the order passed by the prescribed authority, particularly relying upon the undertaking given by the landlord in the case relating to application under Section 21 (1) (b) and held that in view of the provision of Section 24 of the Act, which is reproduced below, it is clear that question of comparative hardship will not come in the way of landlord in allowing the application once the need is found to be bona fide. Thus, the appeal is dismissed by the appellate authority. "24. Thus, the appeal is dismissed by the appellate authority. "24. Option of re-entry by tenant.- (1) Where a building is released, in favour of the landlord and the tenant is evicted under Section 21 or on appeal under Section 22, and the landlord either puts or causes to be put into occupation thereof any person different from the person for whose occupation according to the landlords representation, the building was required, or permits any such person to occupy it, or otherwise puts it to any use other than the one for which it was released, or as the case may be, omits to occupy it within one month of such extended period as the prescribed authority may for sufficient cause allow from the date of his obtaining possession or, in the case a building which was proposed to be occupied after some construction or reconstruction, from the date of completion thereof, or in the case of a building which was proposed to be demolished, omits to demolish it within two months or such extended period as the prescribed authority may for sufficient cause allow from the date of his obtaining possession then the prescribed authority or, as the case may be, the District Judge, may, on an application in that behalf within three months from the date of such act or omission, order the landlord to place the evicted tenant in occupation of the building on the original terms and conditions, and on such order being made, the landlord and any person who may be in occupation thereof shall give vacant possession of the building to the said tenant, failing which, the prescribed authority shall put him into possession and may for that purpose use or cause to be used such force as may be necessary. (2) Where the landlord after obtaining a release order under Clause (b) of sub-section (1) of section 21 demolishes a building and constructs a new building or buildings on its site, then the district Magistrate may, on an application being made in that behalf by the original tenant within such time as may be prescribed, allot to him the new building or such one of them as the District magistrate after considering his requirements thinks fit, and thereupon that tenant shall be liable to pay as rent for such building an amount equivalent to one per cent per month of the cost of construction thereof (including the cost of demolition of the old building but not including the value of the land) and the building shall subject to the tenants liability to pay rent as aforesaid, be subject to the provisions of this Act, and where the tenant makes no such application or refuses or fails to take that building on lease within the time allowed by the District Magistrate, or subsequently ceases to occupy it or otherwise vacates it, that building shall also be exempt from the operation of this Act for the period or the remaining period, as the case may be, specified in sub-section (2) of Section 2. " ( 6 ) BEFORE this Court also the same arguments were advanced by the learned counsel for the petitioner and much emphasis has been laid by the learned counsel for the petitioner that two applications by the same landlord with regard to same accommodation, one under Section 21 (1) (a) and another under Section 21 (1) (b) of the Act are not maintainable. A perusal of Section 21 (1) (a) and Section 21 (1) (b), which are reproduced below, clearly demonstrates that there is no such bar that both the applications cannot be filed or they are not maintainable : "21. A perusal of Section 21 (1) (a) and Section 21 (1) (b), which are reproduced below, clearly demonstrates that there is no such bar that both the applications cannot be filed or they are not maintainable : "21. Proceedings for release of building under occupation of tenant.- (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) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust : (b) that the building is in dilapidated condition and is required for purposes of demolition and new construction : provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds mentioned in Clause (a), unless a period of three years has elapsed since the date of such acquisition and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years : provided further that if any application under Clause (a) is made in respect of any building let out exclusively for non-residential purpose the prescribed authority while making the order of eviction shall after considering all relevant facts of the case, award against the landlord to the tenant an amount not exceeding two years rent as compensation and may, subject to rules, impose such other conditions as he thinks fit : provided also that no application under Clause (a) shall be entertained : for the purposes of a charitable trust, the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, caste or place of birth ; in the case of any residential building, for occupation for business purposes ; in the case of any residential building, against any tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation)Act, 1925 (Act No. IV of 1925) has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act, or where he has died by enemy action while so serving then against his heirs : provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the. landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed. Explanation.-In the case of a residential building : (i) where the tenant or any member of his family who has been normally residing with him or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained. Note.-For the purposes of this clause a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee. (ii ). . . (iii) where the landlord of any building is : (1) a serving or retired Indian Soldier as defined in the Indian Soldiers (Litigation) Act, 1925 (IV of 1925), and such building was let out at any-time before his retirement, or (2) a widow of such a soldier and such building was let out at any-time before the retirement or death of her husband, whichever, occurred earlier and such landlord needs such building for occupation by himself or the members of his family for residential purposes. Then his representation that he needs the building for residential purposes for himself or the members of his family shall be deemed sufficient for the purposes of Clause (a), and where such landlord owns more than one building his provision shall apply in respect of one building only. (iv ). . . ( 7 ) IN this view of the matter the argument that two applications under Sections 21 (1) (a) and 21 (1) (b) are not maintainable cannot be accepted and deserves to be rejected. ( 8 ) ON the question of buildings being dilapidated which requires reconstruction after demolition, the findings arrived at by the prescribed authority and affirmed by the appellate authority, in my opinion, do not, suffer from any error much less manifest error of law so as to warrant interference by this Court under-Article 226 of the Constitution of India. ( 8 ) ON the question of buildings being dilapidated which requires reconstruction after demolition, the findings arrived at by the prescribed authority and affirmed by the appellate authority, in my opinion, do not, suffer from any error much less manifest error of law so as to warrant interference by this Court under-Article 226 of the Constitution of India. Learned counsel for the petitioner tries to demonstrate that the findings are perverse by citing one sentence from one affidavit and another sentence from another affidavit but in view of law laid down by the Apex court in the case of Ranjeet Singh v. Ravi Prakash, AIR2004 SC 3892 , 2004 (2)AWC1721 (SC), (SCSuppl)2004 (3)CHN152 , [2004 (3)JCR85 (SC)], JT2004 (4)SC 127 , (2004)3 MLJ72 (SC), 2004 (3)SCALE481 , (2004)3 SCC682 , this Court cannot sit in appeal to re-appraise the evidence on the record in exercise of powers under Article 226 of the constitution of India when the findings recorded by the prescribed authority and affirmed by the appellate authority do not suffer from error of law. ( 9 ) IN view of what has been stated above, this writ petition lacks merit and deserves to be dismissed. ( 10 ) LASTLY it is submitted by learned counsel for the petitioner that the petitioner is carrying on business from the shop in dispute, therefore, he may be granted some reasonable time to vacate the accommodation in dispute. Considering the facts and circumstances and in the Interest of justice I direct that the order of eviction shall not be executed against the petitioner till 31st august, 2005, provided the petitioner furnishes an undertaking before the prescribed authority within a period of one month from today that he will hand-over peaceful vacant possession of the accommodation in dispute to the landlord on or before 31st August, 2005, provided further that the petitioner-tenant pays, if not already paid, the entire rent and damages at the rate of rent to the landlord within the same period of one month and keeps on paying the same by the first week of succeeding month so long the petitioner remains in possession or till 31st August, 2005, whichever is earlier. In the event of default of any of the conditions, it will be open to the landlord to get the order of eviction executed. ( 11 ) WITH the aforesaid observations this writ petition is dismissed. . In the event of default of any of the conditions, it will be open to the landlord to get the order of eviction executed. ( 11 ) WITH the aforesaid observations this writ petition is dismissed. . .