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2007 DIGILAW 334 (ALL)

RADHEY SHYAM RASTOGI v. ASHISH KUMAR

2007-02-13

RAKESH TIWARI

body2007
JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard Counsel for the parties and perused the record. 2. The petitioner is tenant of northern portion of the accommodation claiming to be the tenant of Sri Hari Ram. Smt. Leelawati widow of late Sri Babu Ram moved an application under Section 21(1) (b) of U.P. Urban Buildings Regalation of (Letting, Rent and Eviction) Act No. 13 of 1972 inter alia that the house in dispute No. 124 situate in Mohalla Chaukasi, Shahjahanpur was purchased by her on 19th September, 1980 from its erstwhile owners, Sri Radhey Lal, Sri Hari Ram Srivastava, Smt. Sharda Devi, Sri Adhey Lal and Sri Ravi Kiran. The house in dispute was more than 80 years old and was in dilapidated condition, as such required demolition and reconstruction. 3. After receipt of the notice the petitioner-tenant filed his written statement stating therein that no inspection had even been made by the Rent Control Inspector in pursuance of the release application filed by the landlord and an incorrect report was given by the Commissioner, as such an application dated 11.7.2003 was moved by the petitioner under Section 151 read with Section 34 (1)(c) of the Act requesting for inspection of the accommodation in dispute by an Advocate Commissioner appointed by the Court for ascertaining the age and life of the building in dispute. The application dated 10.3.2003 moved for appointment of Advocate Commissioner was rejected by the trial Court vide order dated 11.7.2003. 4. Aggrieved by the aforesaid order dated 11.7.2003 rejecting his application the petitioner preferred an appeal which has also been rejected vide judgment and order dated 6.9.2003. 5. The petitioner has challenged the orders dated 29.11.1997 and 6.9.2003 which have been appended as Annexures-7 and 8 to the writ petition and has prayed for a direction in the nature of mandamus commanding and restraining the respondents from evicting the petitioner from the accommodation in dispute and also to restrain the respondents from demolishing the accommodation in dispute. 6. The landlady died, in the meantime. The grandsons who were minors claimed the property on the basis of registered will dated 30.10.1996. 7. The trial Court allowed the application filed by Smt. Leelawati, the landlady on 29.11.1997 under Section 21(1)(b) of the Act. 8. 6. The landlady died, in the meantime. The grandsons who were minors claimed the property on the basis of registered will dated 30.10.1996. 7. The trial Court allowed the application filed by Smt. Leelawati, the landlady on 29.11.1997 under Section 21(1)(b) of the Act. 8. The contention of the Counsel for the petitioner is that the grandsons of the landlady was minors and no sanctioned map has been submitted by any of the grandsons of the landlady for demolition or reconstruction of the building in dispute and that this point was substantially argued before the Appellate Court but it has not been considered by it. 9. As regards dilapidated condition of the building the Counsel for the petitioner has relied upon the following rulings : 1. Shiv Kumar Sharma and others v. Vth Additional District Judge, Muzaffarnagar and others, 2002(1) ARC 568 ; 2. Smt. Munni and others v. Vth Additional District Judge, Hardoi and others, 1986(2) ARC 39; and 3. Smt. Chando Devi and others v. Illrd Additional District Judge, Mathura and others,1984 ARC 10. 10. The Counsel for the petitioner has further urged that the compliance of Rule 17 of U.P. Act No. 13 of 1972 is mandatory which has not been complied with. Rule 17 of the Act is as under : “17. Application for release on the ground of demolition and new construction [Section 21(1)(b) and 34(8)]—Before allowing an application for release of a building under Section 21(1) (b) on the ground that it is required for purposes of demolition and new construction, the prescribed authority shall satisfy itself- (1) that the building requires demolition; (2) Upon the receipt of an application under sub-rule (1), the District Magistrate, the Prescribed Authority or the Appellate or Revising Authority, as the case may be, shall prepare and issue a certificate of recovery in Form G. (3) An application for the execution of the certificate of recovery may then be presented to the Court of Small Causes having jurisdiction under the Provincial Small Cause Courts Act, 1887. After the execution application is disposed of, the executing Court shall certify the result to the authority issuing the certificate of recovery.” 11. He has urged that on the basis of the fact that the landlady has purchased the premises in dispute in 1980 and there is no basis to show that the building is in dilapidated condition. After the execution application is disposed of, the executing Court shall certify the result to the authority issuing the certificate of recovery.” 11. He has urged that on the basis of the fact that the landlady has purchased the premises in dispute in 1980 and there is no basis to show that the building is in dilapidated condition. The petitioner is living therein prior to the purchase of the premises in dispute and as such subsequent events which have occurred after the death of the landlady are to be taken into consideration by the Court below which have not been considered by it, hence the writ petition is liable to be allowed. 12. It appears from perusal of the objection filed on 21.8.1982 in which the petitioner has admitted that the building in dispute is old but still has life of more than 25 years. Thus even according to the objection taken by the petitioner in August, 1982 the remaining life of the building was more than 25 years which has now passed from the date of moving of the application. 13. The life of inhabitants of the premises in suit cannot be endangered. There has been endanger of life where the building has fallen down and the tenants have refused to leave the premises in dispute. This due to the fact that the tenant wants to grab to the old accommodation and every possible objection is raised to restrain the landlord from reconstruction of the building. This Court is of the firm opinion that once the building has lost its life and an application in this regard is made by a landlord it can be entertained by the Courts, as life of citizens is more precious than his tenancy. The condition of the building has been given in paragraph 5 of the application filed by the landlady under Section 21 of the Act which is as under : **5&;g fd mÙkjh fgLlk edku etdwj edcwtk Jherh lq[knsoh fugk;r [kLrko okslhnk vkSj dkfcy jsgk;k ugha FkkA bldk dkQh fgLlk fxj pqdk FkkA pqukps Jherh lq[knsoh etdwj us bl fgLls dks [kkyh djds dCtk o n[ky lk;yk dks ns fn;kA vkSj lk;yk us bl fgLlk dk eyok fxjk gqvk gVok fn;kA lk;yk bl fgLls dks vtw ljs uks rkehj djkuk pkgrh gSA ysfdu lk;yk bl fgLls dh rkehj foyk rkehj vtqljsuh edcwtk edku Qjhdlkuh ugha dj ldrh gSA^^ 14. The aforesaid paragraph has been relied by the petitioner in paragraph 5 of his written statement. He has denied the condition of the building and stated that repairs, white washing etc. was being done. The paragraph 5 of the written statement of the petitioner is as under : **5& ;g fd okn i= dh en ua0 5 vkSj 7 iw.kZr;k vlR; vkSj fujk/kkj gSA edku dk dksbZ Hkh fgLlk nfD[kuh fxjk gqvk ugha gSA dsoy lnjh njoktk dqN {kfrxzLr gks x;k gS tks dkfcys ejEer gSA edku iw.kZr;k jgus ;ksX; gS vkSj vHkh dFku dk de ls de 25 lky thou ks"k gSA edku cgqr etcwr gS] vkSj lkykuk ejEer] iqrkbZ] gksrs gq, iw.kZr;k jgus ;ksX; etcwr vkSj lqjf{kr gSA^^ 15. Though a building may appear strong from outside but the fact remains that once a house has lost its life or completes its age, it requires reconstruction. The written statement/objection has been filed as far back as on 21.8.1982 wherein it has been stated that the building in dispute has at least 25 years life. Now 25 years’ time has passed, hence in any case it cannot be said that the house in dispute has not lost its life. 16. As regards compliance of Rule 17 of U.P. Act No. 13 of 1972 is concerned, the landlady in her application in paragraph 26 has stated that map has been prepared in accordance with Rule 17 of U.P. Act No. 12 of 1972. It has further been stated that she has sufficient money for reconstruction. 17. It appears from the record that the property came to the grandsons of the landlady under the registered will dated 30.10.1996. The grandsons of the landlady who inherited the property now have become major. It appears that the house in dispute was inspected by the Advocate Commissioner though objection has been filed against the report of the Advocate Commissioner. This writ petition has admittedly been filed against the rejection of an application by which the petitioner has requested for appointment of another Advocate Commissioner. 18. In the changed circumstances and in view of the subsequent events in my opinion, the proceedings before the Court below may go on. There is no justification for staying the proceedings in the writ petition even after 25 years of filing of the application under Section 21 of the Act on merely interlocutory order. 18. In the changed circumstances and in view of the subsequent events in my opinion, the proceedings before the Court below may go on. There is no justification for staying the proceedings in the writ petition even after 25 years of filing of the application under Section 21 of the Act on merely interlocutory order. The cost of the reconstruction is increasing day by day. 19. For the reasons stated above, the writ petition is dismissed. ————