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2009 DIGILAW 1720 (ALL)

GOPAL v. VIIITH ADDITIONAL DISTRICT JUDGE MEERUT

2009-04-24

PRAKASH KRISHNA

body2009
PRAKASH KRISHNA, J. ( 1 ) ALL these writ petitions were heard together and are being disposed of by a common judgment, as was jointly suggested by the learned counsel for the parties. Writ petition no. 43306 of 1999 is the lead case. Arguments were advanced with reference to the facts of this case and it was stated by the learned counsel for the parties that the decision given in writ petition no. 43306 of 1999 will be equally applicable to the other connected writ petitions. ( 2 ) THESE writ petitions arise out of proceedings initiated against the petitioner by the contesting respondents herein, under Section 21 (1) (b) of U. P. Act No. 13 of 1972 in respect of a portion of house no. 148, Nuniya, Mohalla Sadar Bazar, Meerut Cantt. The petitioner Gopal is the tenant of a portion of the said house on monthly rent of Rs. 50/- for the last 45 years and it originally belongs to one Smt. Gulzari Devi who passed away on 28-10-1987 and the landlords the contesting respondents are the heirs and legal representatives of Smt. Gulzari Devi (deceased ). An application under aforesaid Section 21 (1) (b) of the Act was filed which was registered as P. A. Case no. 58 of 1994 on the allegations that the said house is in dilapidated condition and requires demolition and reconstruction. The material used in building the said house has outlived its utility and it can fall down any time. The said application was contested on the pleas inter alia that the house in dispute, and the portion in the tenancy in particular, is not in dilapidated condition and does not require any demolition and reconstruction. ( 3 ) THE parties led evidence in support of their respective cases. The respondents landlords filed a report of Sri Abhay Prakash Gupta, Retired Assistant Engineer P. W. D. dated 26-3-1995 in support of their case that the house in dispute is in dilapidated condition and is fit for demolition and reconstruction. In contra, the petitioner filed a report of Sri D. L. Nagpal, a registered Architect dated 17-10-1995. ( 4 ) THE Prescribed Authority by the judgment and order dated 21-8-1997 rejected the release application on the findings that it cannot be said, on the basis of material on record, that the building in question is in dilapidated condition and requires demolition and reconstruction. ( 4 ) THE Prescribed Authority by the judgment and order dated 21-8-1997 rejected the release application on the findings that it cannot be said, on the basis of material on record, that the building in question is in dilapidated condition and requires demolition and reconstruction. The said order was carried in appeal, being appeal no. 280 of 1997, by the landlords. The appellate court, by its judgment and decree dated 29-9-1999, has allowed the appeal and reached to the conclusion that the building in question is in dilapidated condition and requires demolition and reconstruction. Challenging the aforesaid judgment the present writ petition has been filed. The only point mooted by the learned counsel for the petitioner in these petitions is that the findings recorded by the appellate court that the building in question is in dilapidated condition and requires demolition and reconstruction, on the basis of evidence, is incorrect. It may be added here that no argument was advanced by the learned counsel for the petitioner regarding other issues relating to compliance of Rule 17 of the Rules framed under the Act, by the landlords. The said Rule requires fulfillment of certain preconditions such as financial capacity of the landlord to raise construction, sanction of map etc. All these findings were recorded by the appellate court in favour of the respondents landlords and having not been challenged during the course of the arguments have attained finality and need no re-examination by this Court. ( 5 ) ELABORATING the arguments, the learned counsel for the petitioner submits that till date the building has not fallen down and the petitioner is residing therein. A building may be an old construction, but it does not necessarily mean that it requires demolition or has outlived its utility. Emphasis was led that there were heavy rains in the District Meerut some time in the past and number of houses collapsed but the house in dispute remained unaffected. In contra, the learned counsel for the respondents submits that from the report of the expert, it is evident that the building has outlived its utility, the lime and mortar used in the building have lost their utility and it may collapse any time. As reported by their valuer Sri Abhay Prakash Gupta, the building in question is in dilapidated condition. Heard the learned counsel for the parties and perused the record. As reported by their valuer Sri Abhay Prakash Gupta, the building in question is in dilapidated condition. Heard the learned counsel for the parties and perused the record. ( 6 ) EVIDENTLY, there are two reports contradicting each other, on the point in issue. The appellate court preferred to place more reliance on the report of Sri Abhay Prakash Gupta which supports the landlords contention. On the other hand, the Prescribed Authority had preferred to place reliance on the report of Sri D. L. Nagpal. The report of Sri Nagpal has been rejected by the appellate court on number of reasons mentioned in the impugned judgment. It cannot be said that the reasons given by the appellate court in the judgment are in any manner arbitrary or not germane. The court was taken through these reports. On making an analysis of these two reports, undoubtedly the report given by Sri Abhay Prakash Gupta is more exhaustive, detailed one and specific. He has deposed in the affidavit filed in support of the report that foundation of the building in question has become very weak and the tenant in order to conceal the actual position, got the white wash etc. of the disputed house done shortly before the intended inspection. Sri Abhay Prakash Gupta has reported that the house in question is more than 100 years old and it is built with Lakhauri bricks (small bricks ). The construction has been raised by using bricks and mud. Mud has been used for bonding bricks together. The wooden planks used in the building have also outlived its utility. Due to of age, the mud i. e. the bonding material has lost its grip/power. Eastern portion of the constructions standing on the ground floor are in a very bad shape. Ultimately, it has been concluded that the life of the building material used in the disputed house having come to an end, the house is in dilapidated and dangerous condition and requires demolition and new construction. As against this report, the report of Sri D. L. Nagpal is cryptic one and lacks relevant information and details. The said report is devided under the heading introduction, findings, technical details and Specification and then conclusions. As against this report, the report of Sri D. L. Nagpal is cryptic one and lacks relevant information and details. The said report is devided under the heading introduction, findings, technical details and Specification and then conclusions. ( 7 ) UNDER the heading Findings , the only relevant thing mentioned is that the tenants are living in this house approximately since last 30 to 40 years and the house consists of four rooms at ground floor and two rooms at first floor and stair case. Obviously it was none of his concern, nor he inspected the premises for this purpose. Under the heading, technical Details and Specification , a sweeping remark has been made that it is found that the house structure is a load bearing wall structure with the following specifications and technical details- "the walls of the existing building, is 9" and 14" in lime and surkhi mortar. The ground floor consists Kari roofing with sand stone on the load bearing walls. P. C. C. flooring, well plastered. " First floor consists Kari roofing with I-Section and sand stone panels P. C. C. flooring, well plastered. ( 8 ) THEREAFTER, under the heading conclusions it has been stated that the maintenance of the house is livable. There is no crack in any wall/plaster of the house. There is no leakage in roof. F. F. Roofing has been newly built. There is no sagging or decay in the roofing units. There is no setting of flooring/walls. ( 9 ) ON making an analysis of the above report, it would be evident that in the said report, there is no mention as to whether the building has outlived its utility or not. The building materials used in the construction have still life or foundation of the building is in good shape has not been reported. The conditions of the bricks used in the building and the material for bonding the bricks have not been noticed in the report. The report appears to have been given on the superficial look of the building. ( 10 ) THE appellate court while weighing the respective reports, has noticed that the report of the Expert produced by the petitioner has not given the age of the building in dispute and concluded ultimately that the age of building is around 100 years, as found by the Architect of the landlord. ( 10 ) THE appellate court while weighing the respective reports, has noticed that the report of the Expert produced by the petitioner has not given the age of the building in dispute and concluded ultimately that the age of building is around 100 years, as found by the Architect of the landlord. Having taken into consideration the building materials used therein as reported by Shri Abhay Prakash Gupta, the appellate court reached to the conclusion that the house in question has completed its span of life and lost its utility. It cannot be said that the view taken by the appellate court is wholly unreasonable or not a plausible one. In such matters, even if, two views are possible and one view has been taken by a final fact finding authority or court, the said view cannot be disturbed in a writ petition lightly. Time and again it has been said that exercise of writ jurisdiction is not a part of appellate jurisdiction. Even if two views are possible and one view has been taken by the appellate court, it is not open to a writ court to take a different view of the matter. This being so, I find no merit in the submission of the learned counsel for the petitioner that the building in dispute is not in a dilapidated condition. The writ petition lacks merits and is liable to be dismissed as no other point was raised. ( 11 ) IN view of the above discussions, all the writ petitions are hereby dismissed with costs. Time to vacate the disputed premises is granted upto 31-8-2009, provided each petitioner files an undertaking on affidavit before the Prescribed Authority within one month that he will vacate the disputed premises and will hand over its vacant peaceful possession to the respondents landlords on or before 31-8-2009. He shall also deposit the arrears of rent with the Prescribed Authority within the aforesaid period. If the petitioner fails to vacate the disputed accommodation within the time allowed under this judgment, he shall be liable to pay the damages at the rate of Rs. 1,000/- per month for the period commencing from April, 2009 till the date of actual delivery of possession to the contesting respondents. .