Mohd. Ibrahim alias Bafati vs Addl. District Judge (Special Judge) and Others

Sudhir Narain, J.—Respondent Nos. 3 and 4 are landlords of house No. 166, Dondipur, Allahabad. They filed an application for release u/s 21(1)(b) of U.P. Act No. 13 of 1972, mainly on the allegation that the accommodation in question is dilapidated one and requires demolition and reconstruction. The Petitioner contested the said application and denied that it was in dilapidated condition. The prescribed authority recorded a finding that the disputed building is in dilapidated condition and he allowed the application by order dated 7.11.1994. The Petitioner preferred an appeal against the said order and the appellate authority, Respondent No. 1, has dismissed the appeal vide order dated 1.8.1995. The Petitioner has challenged this order in the present writ petition.

I have heard learned Counsel for the parties.

Learned Counsel for the Petitioner has urged two points. It has been submitted that there was no compliance of Clause (iii) of Rule 17 which provides that before allowing an application for release of the building u/s 21(1)(b) on the ground that it is required for purpose of demolition and new construction, the prescribed authority shall satisfy itself that a plan has been duly prepared and conforms to the bye-laws or regulations of the local authority or other authority under any law in that behalf for the time being in force but the landlord did not comply with this requirement and the application u/s 21(1)(b) should not have been allowed by the prescribed authority. A copy of the release application has been annexed as Annexure-3 to the writ petition. in paragraph 9 of the application, it has been stated that the Petitioner had applied for sanction of map for reconstruction. This paragraph was vaguely denied by the Petitioner in his objection. There was no averment that the landlord had not submitted any map for sanction or reconstruction before the local authority concerned. The landlord-Respondent had filed a receipt issued by the Allahabad Development Authority on 6.2.1992 indicating that the Petitioner has submitted an application and receipt dated 6.2.1992 showing deposit of Rs. 40 as fee. On these documents, prescribed authority believing the averments made in the affidavit that the landlord had filed a map for sanction, held that there was compliance of Clause (iii) of Rule 17 of the rules framed under the Act. The prescribed authority further relied upon the plan, for reconstruction prepared by Shri A. K. Gupta, architect, paper No. 36B.

The Petitioner filed an appeal against the order of the prescribed authority and in the memo of appeal, no specific ground was taken that the landlord did not file any map for sanction before the Development Authority. There was a vague ground taken in the memo of appeal that the Respondent failed to comply with Rule 17 of the rules framed under the Act. The appellate authority held that the Respondent had filed the map for sanction. It was proved by the receipt filed by the Respondents which clearly indicates that they had submitted a map for sanction before the authority concerned

Learned Counsel for the Petitioner submitted that landlord-Respondent No. 3 did not submit any application for sanction of the map before, the Allahabad Development Authority and the findings recorded by the prescribed authority and the appellate court are erroneous. It is urged that the application for release is dated 13th January, 1992 and the affidavit filed in support of the application is dated 20.1.1992 while the receipt and the permit fee which is alleged to have been filed for sanction of the map is dated 6.2.1992. The receipt is paper No. 30B and permit receipt is paper No. 31B. The Petitioner in his counter-affidavit filed before the prescribed authority never stated that he made an inquiry and on such inquiry, he found that no application for sanction of the map for reconstruction of the house in question has been filed. The landlord-Respondent had filed affidavit and also filed the permit receipt and the receipt indicating that it was in connection with submitting a map for sanction. in absence of any counter-version by the Petitioner, Respondents 1 and 2 relied upon the affidavit of the landlord that he had filed application for sanction of the map for reconstruction of the house in question and normally when the map is submitted for sanction, it is prepared by some qualified engineer or architect. The finding of Respondents 1 and 2 that a map was filed for sanction of the proposed construction, does not suffer from any manifest error of law. Rule 17 (iii) of the rules framed under the Act does not contemplate that application u/s 21 of the Act cannot be allowed till the map is duly sanctioned by the local authority concerned.

Moreover, in the present case Respondent No. 3 had filed a map paper No. 36B, prepared by Sri Anil Kumar Gupta, architect of the proposed construction. The disputed accommodation consists of two Kotharies, courtyard and bathroom, etc. It has been found to be in total dilapidated condition. The constructions are to be made on the same place where old construction exists. The Petitioner had at no stage stated that the map of the proposed construction submitted to the prescribed authority, paper No. 36B with his own record does not conform to the bye-laws or regulations of the local authorities or other statutory authority under any law in that behalf. Even in the present writ petition, the Petitioner has not stated anywhere that the map submitted by the architect for the proposed construction (paper No. 3613) does not conform to the bye-laws. It is not open to the Petitioner to urge that Respondent No. 3 has not complied with Rule 17 (iii) of the rules framed under the Act. In Anil Kumar Jain v. With Additional District Judge, Saharanpur and Ors. 1995 (1) ARC 22. It was held that it is the duty of the party assailing the plan to point out the precise bye-law which was flouted by the plan, and then, of course, the prescribed authority would be duty bound to examine and come to a conclusion whether or not it conforms to the said provision. in the absence of any such specific assertion on the part of the Petitioner, it will not be open to the Petitioner to contend that the plan does not conform to the bye-laws.

Learned Counsel for the Petitioner has placed reliance on Binda Prasad v. IIIrd Addl. District Judge, Faizabad 1984 (2) ARC 306, wherein it was held that when a plan has been prepared but it is still to be sanctioned by the competent authority, the prescribed authority must examine whether the plan conforms to the building bye-laws or regulations but where the competent authority under the building bye-laws or regulations had itself sanctioned the plan it is not open to the prescribed authority or to the appellate court to sit in judgment over the decision of the said competent authority.

In Ashraf Ali v. IVth Addl. District Judge, Saharanpur and Ors. 1994 (2) ARC 287, it was observed that the plan of proposed construction should be in conformity of the U.P. Regulation of Building Operations Act, 1958. In the present case, the Respondents had averred that they had submitted the map for sanction and there was no averment by the Petitioner that the map was not submitted for sanction or it did not conform to the bye-laws or regulations of the local authority. It cannot be held that the order of prescribed authority is bad in law with regard to the question of compliance of Clause (iii) of Rule 17 of the Rules framed under the Act.

Learned Counsel for the Petitioner next submitted that the finding of Respondents 1 and 2 that the building is in dilapidated condition, is erroneous in law. I have perused the aforesaid judgments and do not find any merit in this submission. The finding has been recorded after considering the evidence filed by the parties and the report submitted by the architect.

The last submission of learned Counsel for the Petitioner is that the landlord himself damaged the building and he cannot take benefit of his wrong. He has placed reliance on Ram Kumar v. IIIrd Addl. District Judge, Faizabad 1986 (2) ARC 275, wherein it was held that an application of the landlord u/s 21(1)(b) of the Act cannot be allowed if he has deliberately caused damage to the building. in the present case, finding has been recorded by both the authorities after considering the evidence on record that the landlord has not damaged any portion of the building. The contention of the Petitioner that the landlord had damaged southern wall of the building was not found to be correct. There is no manifest error of law in the finding recorded by the authorities.

In view of the above, there is no merit in the present writ petition and it is accordingly dismissed.