Ashraf Ali vs 4th Addl.District Judge, Saharanpur and others

Learned Counsel for the petitioner and learned counsel appearing on behalf of the caveator respondent no. 3 have been heard.

By means of this writ petition the petitioner has sought a writ of certiorari quashing the judgment and order dated 7292 of the prescribed authority releasing the accommodation in the tenancy of the petitioner in favour of the respondent no 3 (Landlord) under Section 2l(l)(b) of Act 13 of 1972 and order dated 2894 of the IVth Addl. District Judge, Saharanpur, confirming the same.

Release was sought by the respondent (Landlord) on the ground that the premises in question which was built more than 70 years ago is in a dilapidated condition and requires demolition and reconstruction. He also contended that he has got prepared an estimate of expenditure over the proposed demolition and new construction, has prepared and submitted to the local authority concerned, a plan which conforms to the by laws arid has got the financial capacity for the proposed demolition and new construction. The petitioner contested the release application and denied all the aforesaid contentions. Both the prescribed authority and the appellate court found the contentions of the respondent (Landlord) established by the evidence on record.

The contention of the petitioner that the concurrent finding of fact recorded by the two courts below suffers from a manifest error of law or is a result of non application of mind, is not borne out from the facts and circumstances. In has specifically been found on a thorough scrutiny of the evidence led by both sides including the reports of the architects of the two sides that the building in question is in a dilapidated condition and does require demolition and new construction. Being a finding based on a consideration of all the relevant materials on record, it is not open to reassessment in the present proceedings under Article 226 of the Constitution of India.

The challenge to the impugned orders on the ground of noncompliance of Rule 17 of Act 13 of 1972 is also untenable. The respondent submitted an estimate of demolition and new construction, mere denial was not sufficient to disapprove the same unless the denial was accompanied by some relevant data. As regards the preparation and submission of plan of proposed construction also, there was no reason to doubt the contention of the respondent. The contention in the affidavit of the petitioner, filed in rebuttal, before the prescribed authority, was equally vague in these regards.

There can be no dispute about the proposition that the preparation of a plan conforming to the bylaws is a condition precedent to the release application under section 21 (1 )(b) being allowed. The law in this regard has also been propounded in Binda Prasadv. Ill Additional District Judge. Faizabad and others, reported in 1984(2) ARC 306. In this case, however, the Prescribed Authority has specifically observed that the plan of proposed construction is in conformity of the U. P. Regulation of Building Operations Act, 1958. The appellate authority no doubt has not dilated upon this question in detail but being a judgment of affirmation and the judgment itself showing that all the relevant material was considered, the finding in this regard also cannot be said to be against law or rendered without application of mind.

About the third requirement of Rule 17 regarding the financial capacity of the respondent also, the conclusion of the two courts below are unexceptionable. It was not necessary to fulfil this requirement that the landlord had made advance arrangement of money. What was required, was to show by plausible evidence that the landlord had the capacity to case the required funds in this regard.

The petitioner thus cannot derive any support from the observations in Smt. Munni v. V Additional District Judge, Hardoi and others (1986(2) ARC 39).

There is also no force in the contention regarding the impugned order of release being bad on account of nonobservance of section 24(2) of Act 13 of 1972 by the prescribed and the appellate authority. The right, if any, available under section 24(2) could very well be agitated before the appropriate authority at the proper stage and no mandate of the releasing authority is required in this regard.

The only modification which the impugned order calls for, and to which the respondent too has no objection, is that the respondent should be required to complete the demolition and reconstruction within a reasonable time frame.

The writ petition for the above reasons is dismissed, with a modification to the impugned orders that the respondent no. 3 will complete the demolition and new construction, within a period of one year, from the date of delivery of possession. The Petitioner is allowed two months'' time to deliver possession to the respondent no, 3.

(Petition dismissed).