Narain Lal and Another vs 3rd Additional District Judge and Others

M.P. Singh J.

Petitioners were the tanants. Opposite parties nos. 3 to 5 who are the landlords, filed an application for release u/s 21(1)(a) and (b) of the U.P. Act No. 13 of 1972 (for short the Act) on the ground that the building was in a dilapidated condition, it needed demolition and reconstruction. Petitioners filed an objection denying the case of the landlords.

2 Landlords filed the application for release on the ground that the disputed shop was about hundred years old and was in a dilapidated condition two rear portions have already fallen down and front portion was also likely to fall down The shop was irreparable. The demolition and reconstition was a must. The plan has also been sanctioned by the Nagar Palika. They wanted to demolish the shop after it was released and reconstruct new shops to augment their income as well.

3 The prescribed authority allowed the application for release against which the Petitioners filed an appeal. It was dismissed on 15-1-1993. mis writ petition is directed against the said order.

4 A careful perusal of the release application shows that it was an application u/s 21(1)(b) and not u/s 21(1)(a) of the Act The ingredients of this sub-section have not at all been pleaded. Merely mentioning the provision of section 21(1)(a) in the application will not change its nature.

The appellate authority made a spot inspection on 12-1-93. The inspection note (paper No. 42/1-A) forms part of the record.

6 Petitioners'' case was that the Respondents are not the landlords of the shops. The application for release was not maintainable at their instance. The landlords carne forward with the case that a family partition had already taken place, as a result thereof the disputed shops fell in their share and they are owner and landlords.

The appellate authority while discussing the dilapidated condition of the building has agreed with the finding of the prescribed authority on page 9 of its judgment that the projection having fallen down and the northern wall of the front portion of the shop was slightly damaged and the front walls of the front portion were a little bent. But, it found that there was nothing on record to show that the shop in dispute was in dilapidated condition. It was of the view that the entire shop was not in dilapidated condition. After this finding, it was not necessary for it to examine the bonafide need and comparative hardship of the landlords which is the requirement of section 21(1)(a) of the Act.

I am of the view that since the application was only u/s 21(1)(b) of the Act the appellate authority, after finding that the building was not in a dilapidated condition, had no alternative but to pass suitable orders as required under the said provision.

The appellate authority has relied upon a decision Panchamal Narayan Shenoy Vs. Basthi Venkatesha Shenoy, . The law laid down in that case is of no assistance in the instant case. In that case the Supreme Court had considered the scope of section 21(1)(J) of the Mysore Rent Control Act which is entirely different from section 21(1)(b) of the U.P. Act No. 13 of 1972. Section 21(1)(J) is a sort of amalgamation of section 21(1)(a) and (b) of the U.P. Act No. 13 of 1972.

The scope of section 21(1)(a) and (b) of the Act are entirely different. While deciding an application under sub-clause .(a) the prescribed authority has to satisfy itself that the building is bonafide 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. But while considering the application u/s 21(1)(b) of the Act the Prescribed authority has only to examine whether the building was in a dilapidated condition and it required demolition and new construction. Bonafide need and comperative hardship are foreign to this sub-section. The landlord Judge ha? committed an error while relying upon the provision of section 21(1)(J) of the Mysore Rent Act.

Accordingly I am of the view that the order of the appellate authority suffers from an error apparent on the face of record.

In the case Gappa Mai v. Vih Addl. District Judge, Moradabad, !1988 (2) ARC 279, it was held that the purpose underlying release is divided in two sub-clauses of sub-section (1) of section 21, i.e. sub-clause (a) and (b). Under sub-clause (a) the bonafide need of the landlord was to be established whereas sub-clause (b) refers to a building which is in a dilapidated condition which is required for demolition and making new construction. The scope of these two Sections are entirely different and operate in different fields.

In the instant case, u/s 21(1)(b) of the Act the point to be decided is whether the building is in a dilapidated condition and it needed demolition and reconstruction.

The moment the authorities start considering the bonafide need and comparative hardship while deciding an application u/s 21(1)(b) of the Act it makes the order bad in law. In the case Nisar Ahmad v. The IVth Addl. District Judge, 1982 (2) ARC 322, it was held that the considerations for applying the provision of clauses (a) and (b) different. In a case falling under clause (a) is imphasis on the requirement of his family, meat of the landlord for occupation by himself or any member of family, or any person for whose benefit (sic) is held by him . In a case covered by clause (b) it is the condition of the building which is to prime importance. The question whether the landlord requires it for himself is of no relevance.

I am of the view that the order passed by the appellate authority is not in accordance with law. It suffers from error apparent on the face of record .

Accordingly the writ petition succeeds and is allowed. The impugned order dated 15-1-1993 is hereby set-aside. The case is remanded to the appellate authority to decide the appeal in accordance with the observation made above. It has to confine itself strictly within the meaning of section 21(1)(b) of the Act and nothing else. The appeal is to be decided within three months ''from the date of filing of a certified copy of this order before it.