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Allahabad High Court · body

2019 DIGILAW 959 (ALL)

Ayasha Begum v. Mohd Asraf

2019-04-16

YOGENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : YOGENDRA KUMAR SRIVASTAVA, J. 1. Heard Sri P.K.Jain, learned Senior Counsel assisted by Sri Swetashwa Agarwal and Sri Hisham Qadeer, learned counsel for the petitioner and Sri Iqbal Ahmad, learned counsel appearing for the respondent nos. 2 and 3. 2. The present petition seeks to challenge the orders dated 19.2.2011 passed by the Additional District Judge, Court No. 7, Kanpur Nagar in Rent Appeal No. 18 of 2010 and also in Rent Appeal No. 21 of 2010 whereby the order dated 13.1.2010 passed by the prescribed authority in Rent Case No. 05 of 2006 in respect of Premises No. 132/355, Babupurwa, Kanpur Nagar in proceedings initiated under Section 21 (1) (b) of the U.P. Act No. 13 of 1972 has been set aside. 3. The prescribed authority vide its order dated 13.1.2010 had allowed the release application filed by the petitioner with a condition to provide an equivalent rented accommodation to the respondent nos. 1 to 3 within a period of one year. The respondent 2 filed appeal under Section 22 of the Act before the Additional District Judge, Court no. 7, registered as Appeal No. 18 of 2010. The respondent no. 3 also filed appeal which was registered as Appeal No. 21 of 2010. 4. During the pendency of the aforementioned appeal the petitioner landlady filed an affidavit before the appellate authority giving a specific undertaking that the proposed construction which was to come up over the site of Premises No. 132/355, Babupurwa, Kanpur Nagar would be as per proposed map and the landlady would also let out the newly constructed portion to the tenants, who were appellants in the appeal. It was also averred that the construction to be raised over the site would be let out to the tenant appellants on the basis of rent determined by the District Magistrate Kanpur Nagar as per the provisions of Section 24 of the U.P. Act No. 13 of 1972. In response to the above an affidavit was also filed on behalf of the respondent no. 3-tenant wherein the offer made by the landlady was accepted and it was stated that in the event suitable accommodation was offered to her by the landlady, she would have no objection in handing over vacant possession of the portion under her tenancy. 5. In response to the above an affidavit was also filed on behalf of the respondent no. 3-tenant wherein the offer made by the landlady was accepted and it was stated that in the event suitable accommodation was offered to her by the landlady, she would have no objection in handing over vacant possession of the portion under her tenancy. 5. Contention of the learned counsel for the petitioner is that the prescribed authority upon considering in detail the facts of the case and the evidence which was on record has returned a finding of fact that the building was in a dilapidated condition and was required to be demolished and reconstructed. It has also been pointed out that a certified copy of the registered sale deed dated 9.11.1995 which was filed as evidence (Paper No. 45), to which no objections had been filed by the respondents, also demonstrates that at the time of execution of the aforementioned sale deed in the year 1995 itself the building in question was considerably old and was in a dilapidated condition. The Engineer Inspection Report (Paper No. 21) was also considered wherein an observation had been made that the construction was more than 60-70 years old and was not suitable for use and that the same was in a dilapidated condition and was required to be demolished and reconstructed. 6. It is submitted that the aforementioned finding of fact recorded by the prescribed authority has been reversed in appeal on the basis of a hyper technical view taken with regard to the inspection report submitted by the Engineer. It is further submitted that the appellate court has erred in rejecting the Engineer's report only for the reason that the report had been submitted on the basis of an external inspection of the building. It is further submitted that the petitioner landlady having submitted an undertaking by filing an affidavit before the appellate authority categorically stating that the proposed construction which was to come up over the site would be let out to the tenant-opposite parties on the basis of the rent determined as per the provisions of Section 24 of the U.P. Act No. 13 of 1972 and in response thereto an affidavit had been filed by the respondent no. 3-tenant accepting the aforesaid offer and expressing her willingness to hand over the vacant possession of the portion under her tenancy, the appellate authority has erred in failing to consider the aforementioned facts while deciding the appeal. Moreover, it is submitted that in the event the landlord after obtaining a release order under clause (b) of sub-section (1) of Section 21 demolishes the building and constructs a new building on its site, the original tenant would have a statutory right to apply for allotment under Section 24 (2) of the U.P. Act No. 13 of 1972 which sufficiently safeguards the interest of the tenant. 7. Counsel for the petitioner has placed reliance upon a judgment of this Court in Vishal Chand Jain Vs. IXth Additional District Judge and others, (2007) 1 ARC 888 for the proposition that once the prescribed authority has recorded a finding of fact regarding the dilapidated condition of the building based on evidence on record, the judgment of the prescribed authority cannot be faulted with. 8. Attention of this Court is drawn to the judgment in the case of Ajmal Khan Vs. Additional District Judge and others, (2007) 2 ARC 297 to support the contention that once the engineer's report had been considered by the prescribed authority, and in terms thereof a finding had been recorded with regard to the building being in a dilapidated condition which required demolition and reconstruction, the same could not have been interfered with by the appellate authority. The relevant observations in the judgment with regard to the object of grant of release under Section 21 (1) (b) of the U.P. Act No. 13 of 1972 are being extracted below :- "15. In the case on hand, petitioner-landlord has submitted architect's report. Even if the same is not supported by affidavit of the Architect, the plan sanctioned by the competent authority strengthens the case of the petitioner that the accommodation in dispute is in dilapidated condition and requires demolition and reconstruction as it is sanctioned only after physical verification by competent authority. Bona fide intention of the landlord is also clear from the fact that he has offered the ground floor of the house in dispute after its reconstruction. 16. A large number of cases are coming before High Court where the tenants residing in the accommodations, which are in dilapidated condition, but are not agreeable to their demolition and reconstruction. Bona fide intention of the landlord is also clear from the fact that he has offered the ground floor of the house in dispute after its reconstruction. 16. A large number of cases are coming before High Court where the tenants residing in the accommodations, which are in dilapidated condition, but are not agreeable to their demolition and reconstruction. They not only endanger their own lives but also the lives of members of their family, neighbours and other persons who may be affected in case of untoward happenings of falling down of such buildings. Such tenants obviously do so as tenanted accommodation available to them is on cheaper rent. Court has taken judicial notice of the recent cases where dilapidated buildings have fallen down resulting in death of so many innocent lives. Courts, therefore, have to ensure that lives of the countrymen are protected even if they have to take harsh decision that the tenants will have to pay higher rent after reconstruction of buildings. 17. It may also be seen that during the pendency of the litigation for years together cost of reconstruction of the buildings increases many-fold which may outsource the financial capacity of the landlord. In these circumstances, he may not be able to reconstruct the house which will not be beneficial to either of the parties as the building being in dilapidated condition will certainly fall down at any time. Therefore, the Courts should take immaculate caution in passing interim orders where the landlord intend to reconstruct the building after demolition of old construction. Architects may have different opinions on the issue as to whether the building is in dilapidated condition or not, but in common prudence, whenever such buildings have lost their utility according to the material used in such constructions, same must be demolished for reconstruction if the landlords are agreeable to it. 18. More serious thought is to be given by the Courts as to the cases wherein the tenants intend to protract the proceedings for reconstruction after demolition of old accommodation. In such cases, the tenants must be directed to pay the cost on account of escalation of prices of building materials. 18. More serious thought is to be given by the Courts as to the cases wherein the tenants intend to protract the proceedings for reconstruction after demolition of old accommodation. In such cases, the tenants must be directed to pay the cost on account of escalation of prices of building materials. No tenant should be permitted to deprive the landlord of the rent payable to him in accordance with law after reconstruction of old building merely on the ground that he wants to endanger his own life as well as lives of others by living in the house of dilapidated condition. Too technical view in such matters should not normally be taken by the Courts unless and until it is found that the case of the landlord is wholly false and has no basis. 19. In the instant case, the finding of the appellate Court that the building is not in dilapidated condition is merely on the basis that report of the Architect was not supported by an affidavit, which appears to be too technical. If re-construction is made and the tenant is accommodated in the ground floor after reconstruction, as has been offerred by the landlord, I do not see any difficulty in the matter." 9. Counsel for the respondent has tried to support the order passed in appeal by submitting that the Engineer Inspection Report (Paper No. 21) was based upon an external inspection of the building, and as such the same has rightly not been relied upon by the appellate court. It is also submitted that the application filed on behalf of the tenant for issuance of a commission during the pendency of the proceedings before the prescribed authority having been opposed by the petitioner-landlord creates a doubt with regard to his bonafides. 10. The aforementioned submissions cannot be accepted for the reason that once the Engineer Inspection Report submitted by the Engineer (Paper No. 21) had been accepted by the Prescribed Authority on the basis of a consideration of the material placed on record the appellate court could not have reversed the aforesaid finding unless there were strong and compelling reasons. As regards the issuance of commission, it was always open to the Prescribed Authority to have passed necessary orders if so required in the facts of the case. 11. As regards the issuance of commission, it was always open to the Prescribed Authority to have passed necessary orders if so required in the facts of the case. 11. In order to appreciate the rival contentions the relevant statutory provisions as contained under Section 21 (1) (b) of the U.P. Act No. 13 of 1972 may be referred to. For ease of reference, the aforementioned provision is extracted below :- "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) xxxxx (b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction : ......................." 12. In terms of sub-section (8) of Section 34 of the U.P. Act No. 13 of 1972, the authorities are required to follow such procedure and guiding principles as may be prescribed. In exercise of powers under Section 41 of the U.P. Act No. 13 of 1972, the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as 'Rules, 1972') were made. Rule 17 of the aforementioned Rules 1972, provides certain guiding principles which are to be taken into consideration by the Prescribed Authority for the purposes of satisfying itself before allowing an application for release of building under Section 21 (1) (b) on the ground that it was required for the purposes of demolition and new construction. Rule 17 of the Rules, 1972 is being reproduced below :- "17. Rule 17 of the Rules, 1972 is being reproduced below :- "17. Application for release on the ground far 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) that the building requires demolition; (ii) that a proper estimate of expenditure over the proposed demolition and new construction has been prepared; (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 (iv) that the landlord has the financial capacity for the proposed demolition and new construction." 13. The term 'dilapidated' as referred to under Section 21 (1) (b) although has not been defined under U.P. Act No. 13 of 1972, but it has been the consistent view of this Court that the term 'dilapidated' does not mean that the building is likely to collapse immediately or it is on the verge of collapse. In order to attract the provisions of Section 21 (1) (b) of the Act, 1972 what would be required is that the building had outlived its life and utility and not that it is in the imminent danger of collapse. The question whether a building is in a dilapidated condition or not is a question of fact necessary to be decided on the basis of appreciation of evidence. 14. In this regard reference may be had to the judgment in the case of Kishan Lal Gupta Vs. IXth A.D.J. Ghaziabad and others, (1999) 1 AWC 222 wherein it was held as follows :- "5. The word ''dilapidated' means in a state of disrepair but is not necessary that the building should be in a fallen state or in ruinous condition. See the cases of Shyam Lal Goel v. VI Additional District fudge, Meerut, 1979 AllLJ 1258 . IXth A.D.J. Ghaziabad and others, (1999) 1 AWC 222 wherein it was held as follows :- "5. The word ''dilapidated' means in a state of disrepair but is not necessary that the building should be in a fallen state or in ruinous condition. See the cases of Shyam Lal Goel v. VI Additional District fudge, Meerut, 1979 AllLJ 1258 . and Ram Avtar v. VII Additional District Judge, Moradabad, 1982 ARC 124, for the applicability of clause (b) all that is necessary is that the building has outlived its life and not that it should start falling, therefore, the mere fact that no portion of the building did actually fall down during this intervening period would not lead to a conclusive inference that the building is not in a dilapidated condition. The argument that before an application under clause (b) is allowed for the demolition and re-construction of the tenanted building, one must wait for the building to get on the verge of collapse would be a negation of the basic principle of safety and security, underlying the provisions of Section 21(1)(b) of the Act and for this proposition." 15. In Kamla Devi Vs. Special Judge Ghaziabad, (2013) 2 AWC 1877 this Court has considered in detail the question as to when a building would be held to be in a dilapidated condition. The observations made in the aforementioned judgment are as follows :- "17. The question, therefore, would be when a building is in "dilapidated" condition. Whether a building is in dilapidated condition or not, is a question of fact necessarily to be decided on appreciation of evidence but what would construe a building "dilapidated" involves a question of law also. Therefore, it can be said to be a mixed question of fact and law. Whether the term "dilapidated" means likely to collapse or fall immediately or imminently or whether it is totally inhabitable, and dangerous for life and safety or something otherwise; is a question of law to be decided by the Court. 18. The term "dilapidated" has not been defined in the Act, 1972, it has been under consideration for umpteen times before this Court and the judicial consensus borne out therefrom is that the term "dilapidated" does not mean that it is likely to collapse immediately or imminently or in other words it is on the verge of collapse. 18. The term "dilapidated" has not been defined in the Act, 1972, it has been under consideration for umpteen times before this Court and the judicial consensus borne out therefrom is that the term "dilapidated" does not mean that it is likely to collapse immediately or imminently or in other words it is on the verge of collapse. If such an argument is accepted, besides being wholly unwarranted, it would be a negation of the basic principle of safety and security of a person and his property. To my mind, what is required to attract section 21(1)(b) of Act, 1972 is that the building has outlived its life and utility and not that it has started falling. The mere fact that after complaint raised by landlord that building is in dilapidated condition, it has continued to survive for sufficiently long time thereafter, is wholly irrelevant to decide the question, whether building is in a dilapidated condition or not. 19. It is no doubt true that onus to prove that a building is in dilapidated condition lies upon the landlord since it is he, who is seeking a relief based on the aforesaid fact but it would not mean that the degree of onus can be extended to the extent of impossibility by asking him to prove something which is not necessary for the purpose. 20. The view I have expressed above is consistent with this Court's precedent in Shyam Lal Goel v. VIth Additional District Judge, Meerut,1979 AllLJ 1258 ; Ram Avtar v. VIIth Additional District Judge, Moradabad,1982 ARC 124 ; Smt. Shanti Devi v. Ist Additional District Judge, Kanpur,1983 1 ARC 21 ; Mahmood Yar Khan v. Irshad Ali Khan,1985 1 ARC 298 ; Kishan Lal Gupta v. IXth Additional District Judge, Ghaziabad, (1998) 34 AllLR 612 ; Harish Chandra Gupta v. Swatantra Kumar Jain, (1999) 36 AllLR 314 . and Prince Agrawal (Dr.) v. Prasanna Madhav Vyas, 2009 76 AllLR 425 .]." 16. In the case of Chandrawati Vs. District Judge Pauri and others,1979 AllLJ 12 it was held as follows : "8. In regard to the second submission the question which has to be examined is as to what is the meaning of the expression ''dilapidated condition' used in S. 21(1)(b) of the Act. In the case of Chandrawati Vs. District Judge Pauri and others,1979 AllLJ 12 it was held as follows : "8. In regard to the second submission the question which has to be examined is as to what is the meaning of the expression ''dilapidated condition' used in S. 21(1)(b) of the Act. The District Judge has taken the view that the word ''dilapidated' should be given a meaning that the building has gone to waste and was in ruins. In fact what the District Judge implied by giving this meaning to the word ''dilapidated' was that the building was not in use at all and has fallen down. In my opinion the District Judge has put a wholly erroneous interpretation on the words "dilapidated condition". 9. The word ''dilapidated' has not been used singly. It has been used in conjunction with the word ''condition'. The expression used is the building is in a dilapidated condition.' The words used clearly imply that the building must be in existence in some form, otherwise, the question of release' does not arise. Its condition must be dilapidated in nature. The words which require interpretation are ''dilapidated condition'. 10. When a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood, in common parlance. It is further "set" tied law that in selecting one out of the various meanings of a word regard must always be had to the context as it is a fundamental rule that the meanings of words and expressions used an Act must take their colour from the context in which they appear. 11. In S. 21(1)(b) the expression ''dilapidated' is used for the building and it is, therefore, necessary to find out what meaning should be given to the word ''dilapidated' in such a context. In Shorter Oxford English Dictionary. Third Edition, the word ''dilapidated' has been defined to bring (a building) into a state of decay or of partial ruin. The other meaning given is ''to fall into ruin decay, or disrepair,' In the dictionary when the word ''dilapidated' is used in relation to a building the definition is ''into a state of decay or of partial ruin.' The word ''dilapidated' cannot possibly mean complete ruin. 12. The other meaning given is ''to fall into ruin decay, or disrepair,' In the dictionary when the word ''dilapidated' is used in relation to a building the definition is ''into a state of decay or of partial ruin.' The word ''dilapidated' cannot possibly mean complete ruin. 12. In my opinion the proper meaning which should be given to the word, dilapidated in the present context is a building which is ''in a state of decay or of partial ruin or disrepair'. A building though it may stand but if it is lying in a very bad condition due to do repairs at all it would come in the category of ''dilapidated'. It depends upon the facts and circumstances of each case. There may be a building, in which the walls are cracking, portions of roofs are likely to fall down, the beams have been eaten away by the white ants eta. This will be a case of a building being in a dilapidated condition though it may still be inhabited by people. It may also be possible that a part of the building, may be in a dilapidated condition when too S. 21(1)(b) will fully apply because, partial ruin also comes within the definition of ''dilapidated', but that does not mean that only a small insignificant portion or an out house is in a dilapidated condition. It depends on the facts and circumstances of each case." 17. Similar view was taken in the case of Smt. Chando Devi and others Vs. Third Addl. District Judge, Mathura and others, (1984) 1 ARC 10 wherein it was held as follows :- "2. Dilapidated has not been defined in the Act. It has therefore to be understood in its ordinary sense. In Webster Third International Dictionary it is defined as, ''decayed', deteriorated', injured or fallen into partial ruin specially because of neglect or misuse.' In Little Oxford Dictionary ''dilapidation' is defined as ''state of bad repair' ''falling into decay' and the word dilapidated as ''in decay'. 3. In Black's Legal Dictionary dilapidation is explained thus. ''The term is also used in the law of landlord and tenant, to signify the neglect of necessary repairs to a building or suffering it to fall into a state of decay or the pulling down of the building or any part of it. Therefore range or variation is quite wide. 3. In Black's Legal Dictionary dilapidation is explained thus. ''The term is also used in the law of landlord and tenant, to signify the neglect of necessary repairs to a building or suffering it to fall into a state of decay or the pulling down of the building or any part of it. Therefore range or variation is quite wide. From neglect of repair to decay or necessity to pull down are all included. In what sense it has been used in the Act? To find out if there is any indication in the Act itself as to in which sense Legislature had used the milder one, that is even for repair, or stronger one, in state of ruins there can be no better guide than to examine the context in which it has been used in sub-section itself which reads as under: (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 a dilapidated condition and is required for purposes of demolition and new construction; 4. It shall be seen that along with word dilapidated two other words have been used, demolition and reconstruction. Surely if building was worth repair only then Legislature was not making a provision in a social legislation meant to protect the tenant from eviction, for its release because the landlord shall demolish and raise in its place new building. The requirement of demolition and reconstruction have to be follow up action, consequence for result because the building cannot continue in its existing form, it is in ruins, in decay. True demolition and reconstruction are additional requirement to be satisfied before a building can be released but the word dilapidated cannot be read in isolation or divorced from the context in which it is used. Requirement of reconstruction gives clue to the sense in which word dilapidated should be understood." 18. True demolition and reconstruction are additional requirement to be satisfied before a building can be released but the word dilapidated cannot be read in isolation or divorced from the context in which it is used. Requirement of reconstruction gives clue to the sense in which word dilapidated should be understood." 18. In the case at hand, the Prescribed Authority on the basis of evidence available on record has held that the construction was more than 60-70 years old and was not suitable for use, and that the same was in a dilapidated condition which required to be demolished and reconstructed. In view of the categorical finding of fact recorded by the prescribed authority on the basis of appreciation of evidence on record, it was not open to the appellate authority to have reversed the said finding based on an overly hyper technical view. 19. The Engineer Inspection Report (Paper No. 21), which was taken note of by the Prescribed Authority, clearly stated that the construction was more than 60-70 years old and was not suitable for use and that the same was in a dilapidated condition and was required to be demolished and reconstructed. Moreover, the certified copy of the registered sale deed dated 9.11.2015 (Paper No. 45), filed as evidence before the Prescribed Authority, also demonstrated that at the time of execution of the aforementioned sale deed in the year 1995 itself the building was considerably old and was in a dilapidated condition. 20. The Prescribed Authority, in addition to having recorded a categorical finding that the building in question was in a dilapidated condition which required demolition, has also gone into the question with regard to the necessary compliance of the provisions under Rule 17 of the Rules, 1972, having been made by the landlord in respect of the other factors enumerated therein. The necessary material evidence which was on record was considered to arrive at a conclusion that a proper estimate of expenditure over the proposed demolition and new construction had been prepared by the authorized engineer, a plan had also been duly prepared which was in conformity of bye-laws/regulations of the local authority, and also that the landlord had the necessary financial capacity for the proposed demolition and new construction. 21. 21. It may be taken note of that the Rule 17 of the aforementioned Rules, 1972 contemplates that the Prescribed Authority while considering an application on the ground of Section 21 (1) (b) shall satisfy itself that the building requires demolition, and in terms of the aforementioned provisions, if the Prescribed Authority records its satisfaction regarding the condition of the building and comes to the conclusion that it is in a dilapidated condition and it requires demolition, the same is not to be disturbed unless there are strong and compelling reasons. The finding recorded by the Prescribed Authority with regard to the building being in a dilapidated condition, was thus a finding of fact recorded on the basis of appreciation of evidence on record, and apart from taking an overly hyper technical view no cogent reason has been assigned by the appellate authority for interfering with the aforesaid finding of fact. 22. The appellate authority has also failed to consider the undertaking which had been filed by the petitioner-landlady before the appellate authority categorically stating that the proposed construction which was to come up over the site after demolition of the existing structure, would be let out to the tenant-opposite parties as per the provisions of Section 24 of the U.P. Act No. 13 of 1972 and in response thereto an affidavit had been filed by the respondent no. 3-tenant accepting the aforesaid offer and expressing her willingness to hand over the vacant possession of the portion under her tenancy. 23. The order passed by the Appellate Authority for the aforesaid reasons, cannot be sustained. 24. For the reasons stated above, the writ petition succeeds and is allowed. The orders dated 19.2.2011 passed by the Additional District Judge, Court No. 7, Kanpur Nagar in Rent Appeal No. 18 of 2010 and also in Rent Appeal No. 21 of 2010 are set aside. Accordingly, the order dated 13.1.2010 passed by the Prescribed Authority in P.A. Case No. 05 of 2006 stands affirmed.