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2017 DIGILAW 468 (ALL)

Kamal Narain v. Savitri Devi

2017-02-08

ASHWANI KUMAR MISHRA

body2017
JUDGMENT Ashwani Kumar Mishra, J. -- This petition is filed by the tenant, challenging an order passed by the trial court, allowing the application filed under Section 21(1)(b) of U.P. Act No.13 of 1972, as has been affirmed in appeal. 2. Following submissions have been advanced by the learned counsel for the tenant petitioner: - (i). Tenant was in possession of a portion of house on the first floor and also on the second floor, but his tenancy has been confined to first floor alone, ignoring the evidence led with regard to his possession on the second floor. (ii). It is contended that there was no evidence to demonstrate that the premises was in dilapidated condition. (iii). That there was no map sanctioned by the Development Authority, and therefore, requirement of Rule 17 was not met. (iv). It is also stated that though proceedings were initiated through a power of attorney, but such power of attorney was not annexed. (v). It is also stated that plaintiff has to establish his own case, and since he has failed to establish his case, and therefore, the courts below have erred in decreeing the suit. 3. Sri Atul Dayal, learned counsel appearing for the respondent landlord, on the other hand, contends that the courts below have confined their judgment to the pleadings put forth by the parties, and the arguments advanced before this Court are not in tune with it. It is also stated that so far as power of attorney is concerned, no objection was raised, nor any issue in that regard was framed. Learned counsel further submits that a map in accordance with the bye-laws had been prepared, and since the total plot area was less than 100 sq. yard, and therefore, there was no requirement of prior approval being obtained from the concerned Development Authority. It is also stated that material in the nature of a certificate of Engineer as well as the local authority existed on record to show that building was more than 120 years old, and was in dilapidated condition. 4. I have heard Sri Prakhar Tandon, learned counsel for the petitioner and Sri Atul Dayal, learned counsel appearing for the respondent landlord, and have perused the materials brought on record. 5. 4. I have heard Sri Prakhar Tandon, learned counsel for the petitioner and Sri Atul Dayal, learned counsel appearing for the respondent landlord, and have perused the materials brought on record. 5. The plaint annexed alongwith this petition categorically states in para-5 that defendant no.1 Shiv Mangal Singh was a tenant on the ground floor at the rate of Rs.300/- per month, whereas defendant no.2 was a tenant on the first floor. This averment is admitted in the written statement. There is no plea taken in the written statement that defendants were also in possession over the second floor. Once no plea with regard to tenancy on second floor was set up in the written statement, the tenant cannot be permitted to state before this Court that the tenancy existed on the second floor as well. Law is settled that in absence of pleading, no evidence can be looked into. The first submission advanced by Sri Tandon is rejected, by holding that tenancy would have to be confined to the portion on the ground floor as well as first floor, and not on the second floor. 6. So far as objection with regard to non-existence of power of attorney is concerned, this Court finds that no such objection was raised before the court concerned, nor any issue was framed. An issue, which has not raised before the court below, cannot be permitted to be raised before this Court, for the first time. 7. Turning to the next submission advanced, it is to be observed that evidence was led on behalf of landlord to demonstrate that the building was in dilapidated condition. The report of the Engineer alongwith affidavit, being paper no.29-C, has been referred to, which states that building is in dilapidated condition, and it is more than 120 years old. No contra evidence was led. In such circumstances, both the courts below have held that building was in dilapidated condition. No error could be shown in it. 8. The last submission advanced by learned counsel for the petitioner is with regard to non-compliance of Rule 17(iii) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. It would be appropriate to notice the provision itself, which reads as under: - "17. No error could be shown in it. 8. The last submission advanced by learned counsel for the petitioner is with regard to non-compliance of Rule 17(iii) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. It would be appropriate to notice the provision itself, which reads as under: - "17. Application for release on the ground for demolition and new construction [Sections 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- (i) ..... (ii) ..... (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" 9. The rule clearly provides that a plan is required to have been prepared, which conforms to the bye-laws or regulations of the local authority, and there is no stipulation that a building plan duly sanctioned has to be produced. In the absence of any such requirement in law, the submission of the tenant that Rule 17 was not complied with as there was no sanctioned plan, cannot be accepted. The plan for reconstruction was produced before the courts below. It is also contended that constructed area being less than 100 metre, no sanction was otherwise required as per the building bye-laws. There is further no plea in the written statement that the plan prepared is not in accordance with the bye-laws. 10. Last but not the least, pursuant to the decree passed by the trial court, defendant petitioner was evicted and vacant premises was handed over to the landlord. This finding is not assailed by the petitioner. What is stated that he is in possession over the second floor. Once the plea of tenancy on the second floor has not been urged in the written statement, such argument cannot be entertained, at this stage. 11. Learned counsel for the petitioner relied upon a decision of the Apex Court in Radhey Shyam Rastogi Vs. Ashish Kumar, reported in 2008 (10) SCC 225 : 2010 (2) ARC 402 , to contend that in absence of any evidence to demonstrate that the building was dilapidated, the landlord could not seek benefit under Section 21(1)(b). 11. Learned counsel for the petitioner relied upon a decision of the Apex Court in Radhey Shyam Rastogi Vs. Ashish Kumar, reported in 2008 (10) SCC 225 : 2010 (2) ARC 402 , to contend that in absence of any evidence to demonstrate that the building was dilapidated, the landlord could not seek benefit under Section 21(1)(b). There is no quarrel on the proposition, but it has no applicability, in the facts of the present case, as evidence to demonstrate that building was dilapidated, has been brought on record, and has been duly noticed. Submission of Sri Tandon that the certificate issued by the Nagar Nigam is only an opinion, and therefore, no material existed is wholly misconceived, inasmuch as the report of the Engineer, which was duly supported by the affidavit, and had not been controverted, existed on record, which has been relied upon. The other judgment in Jokhan Vs. District Judge and others, reported in 1982 (2) ARC 290, again is distinguishable on the facts of the present case, inasmuch as necessary ingredients to allow an application under Section 21(1)(b) did exist on record in the present case. 12. The petition, consequently, fails and is dismissed.