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2018 DIGILAW 289 (ALL)

ABDUL KHAIR v. ADDITIONAL DISTRICT JUDGE

2018-02-02

MAHENDRA DAYAL

body2018
JUDGMENT : Mahendra Dayal, J. Heard Sri Aftab Ahmad, learned counsel for the petitioners and perused the record. 2. No one has appeared on behalf of the respondents inspite of sufficient service of notice. 3. The petitioners have filed this writ petition for quashing of the order dated 03.03.2016 passed by the Additional District Judge, Court No. 9, Lucknow whereby the rent appeal filed by the opposite party was allowed and the matter was remitted back to the prescribed authority for fresh decision. 4. The petitioners who are the landlord of the premises in dispute, moved an application for release under Section 21(1)(b) of U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972 on the ground that house No. 158/64 situated Ganga Prasad Road, Aminabad Lucknow was in dilapidated condition and was required for demolition and reconstruction. 5. The aforesaid release application was contested by the opposite party but the learned prescribed authority on the basis of evidence recorded a finding that the building was in dilapidated condition and was required for demolition and reconstruction. With these findings, the release application was allowed and the opposite parties were directed to vacate the premises in their occupation. 6. The opposite parties feeling aggrieved by the order of release, preferred Rent Appeal No. 69 of 2014 which was decided on 03.03.2016 and the order of the prescribed authority dated 29.05.2014 was set aside. The matter was remitted back to the prescribed authority to call for a fresh Amin Report and thereafter record a fresh finding and decide the release application again. 7. The learned counsel for the petitioners submits that the building in question comprises of three shops and two rooms and was in occupation of different tenants. The prescribed authority called for a report of Amin in another prescribed authority case No. 18 of 2010 and relying upon the said Amin Report, the release application filed by the petitioners was allowed. The learned appellate court was of the opinion that the report of Amin filed in another prescribed authority case No. 18 of 2010 could not have been taken into account. The prescribed authority ought to have called for a fresh Amin Report. The learned appellate court was of the opinion that the report of Amin filed in another prescribed authority case No. 18 of 2010 could not have been taken into account. The prescribed authority ought to have called for a fresh Amin Report. The contention of the learned counsel for the petitioners is that it was not at all necessary because the report of the Amin was in respect of the entire building and the petitioners had filed the release application on the same ground and therefore the prescribed authority did not commit any illegality in considering the Amin Report filed in another release application. Moreover, the appellate authority is also having the same power as that of the prescribed authority and it could have obtained Amin Report instead of remitting the matter back to the prescribed authority. The learned counsel for the petitioners has referred to Rule 22 of the Rules framed under the Rent Control Act to show that the power to be exercised under the Code of Civil Procedure either by the prescribed authority or by the appellate authority, is the same. By remitting the matter afresh, would give fresh lease of life to the opposite parties. It will also consume much time and therefore the order passed by the appellate court is neither justified nor legal. 8. Having heard the learned counsel for petitioners and having considered the order passed by the prescribed authority, I am of the view that the learned prescribed authority after detailed discussions and relying upon the Amin Report, recorded a finding that the building was in dilapidated condition and was required for demolition and reconstruction. It was also found that the compliance of Rule 17 has been made by the petitioners. It is not disputed that the Amin Report submitted in another release matter, was in respect of the entire building and as such the learned prescribed authority rightly did not issue any fresh commission for local inspection and relying upon the Amin Report, passed the release order. The appellate court has allowed the appeal only on the ground that the prescribed authority ought to have called for a separate report in this case instead of relying upon the report filed in another case which was decided on the basis of compromise. The appellate court has allowed the appeal only on the ground that the prescribed authority ought to have called for a separate report in this case instead of relying upon the report filed in another case which was decided on the basis of compromise. Although no fresh report is necessary in view of the fact that Amin Report in respect of the entire premises was already on record in another release case but even if the appellate court finds it proper to obtain a fresh report, the appellate court may obtain a report by issuing commission instead of remitting the matter back to the prescribed authority. 9. In view of the discussions and observations made herein above, the order passed by the appellate court remitting the matter back to the prescribed authority is not sustainable and is liable to be set aside. Consequently the writ petition is allowed and the order dated 03.03.2016 passed in Rent Appeal No. 69 of 2014 is set aside. It is directed that the appellate court shall restore the appeal to its original number and after consideration of the matter on record, if the appellate court finds that a fresh report is required, it may obtain the same by issuing commission for local inspection and thereafter decide the appeal in accordance with law after giving opportunity of hearing to the parties. The petitioners may file a certified copy of the order passed today before the appellate court for further progress in the appeal.