Om Prakash Kashyap vs The Additional District Judge and Others

R.B. Mehrotra, J.—By means of present writ petition under Article 226 of the constitution the Petitioner has challenged the order of the Prescribed authority (Second Additional Civil Judge; Dehraduo, dated 6th February 1987 passed in Misc. Suit No. 98 of 1984 Anand Prakash v. Om Prakash Kashyap allowing the application of the Respondent landlord u/s 21(1)(b) of the U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) and also the order of the Additional District Judge, Dehradun, rejecting the Petitioners Rent Control Appeal No. 21 of 1987, Om Prakash Kashyap v. Anand Prakash vide its judgment dated 6th December 1988 affirming the order of the prescribed authority dated 6th February 198/.

I have heard learned Counsel for both the parties at the admission stage itself. The matter is being disposed of finally with the consent of learned Counsel for the parties.

Learned Counsel for the Petitioner has made three submissions seeking quashing of the impugned orders.

(1) that the Respondent landlord has himself contributed to the deterioration of the disputed budding resulting in making the building dilapidated by demolishing the building himself. As such in the present case the Respondent landlord was not entitled to set relief u/s 21(1)(b) of the Act in view of the law laid down by this Court in Ram Kumar v. Third Additional District Judge Faizabad 1986 (2) ARC 75.

(2) that there is no finding recorded by the courts below for compliance of Rule 17(ii) of the rules framed under the Act. The compliance of Rule 17(i) was a mandatory requirement, and the courts below has committed jurisdictional error is allowing the application of the Respondent landlord u/s 21(1)(b) of the Act without recording and finding regarding compliance of rule 17(ii) despite the fact that the said point was specifically raised by the Petitioner in the courts below. The Petitioner�s counsel relief on a decision of this Court in Gaya Prasad v. Fourih Additional District Judge, Aligarh 1982 (1) ARC 49.

(3) that the courts below have also not cared to look into the compliance of Rule 17(iv) of the Rules framed under the Act.

Elaborating the aforesaid submissions, the Petitioners, counsel Sri Rajesh Tandon has submitted that the Petitioner�s case through out was that Immediately after purchasing the property in dispute the Respondent landlord started forcibly demolishing; the building in dispute with the object of getting the building vacated from the Petitioner tabard. Compelled by the aforesaid illegal activities of the Respondent landlord, the Petitioner filed Suit No. 313 of 1083, Om Prakash v. Prem Nath Sharma in the court of Munsif Magistrate, Dehradu, and obtained injunction against the Respondent from demolishing the premises in dialup has also been stated by the Petitioner that the said suit of injunction has been finally decreed against the Respondent landlord who has been restrained from demolishing the building in dispute. The submission is that since the Respondent hind lord himself has contributed to a situation by which the building has reached in a dilapidated condition, requiring demolition, the Respondent landlord''s application for getting the building released u/s 21(1)(b) of the Act should not be allowed. The Petitioner�s counsel relied upon a decision of ''his Court in Ram Kumar''s case supra) wherein it has been laid down that if the Respondent bind lord has himself contributed to a situation which the building has reached in a dilapidated condition, the application of the Respondent landlord shall not be allowed u/s 21(1)(b) of the Act. The contention of the Petitioner�s counsel is that the courts below just failed to consider this aspect of the matter white allowing the Respondent landlord application u/s 21(1)(b) of the Act and did not consider the facts relating to the contribution of the Respondent landlord in making the building dilapidated and further pointed out that this point was specifically raised in the courts below but despite it, they have not given any finding on the said aspect of the matter.

Sri L.P. Naithani, learned Counsel the the Respondent in reply to the aforesaid submission, stated that u is clear from the inspection note of the Prescribed authority and the findings recorded by the two courts below show that, the citify of the building was such, which can not be held to be contributed by the Respondent landlord The inspection note gives details of he condition of the building it is stated there that the disputed property is in dilapidated condition, the wooden pillars have been used to give to the support wooden girder of the roof due to which three has been hole in the roof The prescribed authority in his inspection note, found that the building is not only in a dilapidated condition ''but is in a dangerous condition and any accident can occur in the said building at any time. The first floor of the building which was in occupation of the Respondent landlord is vacant. There ate wide cracks in the wall and the wall can fall down at any time. The roof is bent so much, that it can fall down at any time if the water collects there. The wooden pillar have completely decayed. The inspection note clearly shows that the building is in a condition which is in capable of repairs. On the basis of evidence of the parties the prescribed authority recorded a categorical finding that most of the wooden girders have been eaten by white ant. The said building is hundred years old and is in a dilapidated condition requiring demolition. The said finding has been affirmed by the first appellate authority.

The learned Counsel for the Respondent has contended that such a situation cannot be created by any action of the Respondent landlord. In view of the aforesaid finding the contention is that the court below were not required to give separate finding as to whether the Respondent landlord has contributed anything in making the building dilapidated. The inspection note as well as the finding of the prescribed authority clearly show that the condition of the building was such that it cannot be held to be due to any act of the Respondent landlord, by any stretch of argument. I agree with the submission of learned Counsel for the Respondents. In view of the concurrent findings recorded by the courts below regarding the diapidated condition of the building and in view of the inspection note of the prescribed authority there is no scope for holding that the condition of the said building was due to any contribution of the Respondent-landlord as such it was not necessary for the courts below to have decided the said question separately. The contention of the Petitioner has been impliedly rejected by the courts below by recording a finding that the building is not only in a dilapidated condition but in a dangerous condition and can fall down at any time, causing incident which may result in human injury. In this view of the matter I do not find any force in this contention of the learned Counsel for the Petitioner.

The second contention of the Respondent-landlord is that Rule 17(ii) of the rule requires:

that proper estimate of expenditure over the proposed demolition and new construction has been prepared.

The contention of the learned Counsel for the Petitioner is that in the present case the Petitioner has only given estimate of the new construction but has not given any separate estimate over the cost of proposed demolition. Another point on which the Petitioner has placed reliance in respect of Rule 17(iv) which reads as under;

that the landlord has financial capacity for the proposed demolition in a new construction.

The contention of the learned Counsel for the Petitioner is that the finding of the courts below that Rule 17 has been complied with is patently perverse as there was no proper estimate of expenditure over the proposed demolition and the courts below have erred in judging the financial capacity in respect of the proposed construction. The further contention is that the aforesaid rule is mandatory and even though the Petitioner has not raised any specific objection for compliance of the rule the Respondent landlord''s application u/s 21(i)(b) of the Act could not have been allowed without compliance of the said rule as it is mandatory requirement and it was the duty of the court itself to satisfy that Rule 17 has been complied with only then the Respondent landlords'' application u/s 21(1)(b) could have been allowed.

In reply to the aforesaid argument learned Counsel for the Respondent has submitted that so far as financial capacity of the Respondent landlord for demolition and new construction are concerned, the courts below have given specific finding in favour of the Respondent-landlord have held that the Respondent-landlord have financial capacity to demolish end reconstruct a building. The learned Counsel for the Respondent then further submitted that the Respondent-landlord has already given an undertaking in the courts below that he will reconstruct a building within reasonable time and inform the District Magistrate for reeducation of the Petitioner in accordance with Section 24(2) of the Act and the courts below having accepted the said capacity undertaking it is not open to the Petitioner to raise question of financial capacity of the Respondent-landlord. So far as the compliance of rule 17(ii) is concerned, the contention of the Respondent''s counsel is that it is composite requirement that the estimate of expenditure over the demolition and new construction is to be prepared. The Respondent-landlord prepared an estimate of new construction even though specifically no separate estimate of expenditure has been given the broad requirement of Rule 17(ii) his been complied with the learned Counsel for the Petitioner never took any objection on the question that proper estimate of proposed demolition has not been given. The learned Counsel then further contended that in view of the findings recorded by the two courts below that Rule 17(ii) has been complied with, this Court should not interfere in the findings of fact recorded by the courts below in exercise of its jurisdiction under Article 226 of the Constitution, even though technically there may be some error in the findings recorded by the courts below. In support of this contention the learned Counsel for the Respondent has cited Ganga Ram v. Prescribed Authority, Kanpur 1988 ARC (1) 96 where in it has been held that normally High Court should not interfere in the finding of facts recording that the building is in a dilapidated condition. It is also submitted that this Court should not interfere when the courts below were satisfied that Rule 17(ii) has been complied with. Learned Counsel for the Respondent has further submitted that since he has already given an undertaking in the courts below for getting the building reconstructed within a reasonable time, objection of the Petitioner is not sustainable on these technicalities.

I have considered the aforesaid submissions carefully and I am of the opinion that even though Rule 17 is a mandatory requirement and application u/s 21(1)(b) of the Act can be allowed, unless the requirement is complied with. The courts below have recorded a finding about compliance of Rule 17. Even if there is some technical error in approach of the courts below in not looking compliance of part of Rule 17(ii) i.e. not calling for estimate of expenditure of demolition of the existing building this Court should not interfere in the aforesaid finding taking into account the over all situation of the building. Moreover the Respondent is undertaking to reconstruct the building within a reasonable time. As such the purpose of compliance of Rule 17 stands achieved. Rule 17 has been incorporated only with the purpose that the landlord may not create a situation after getting release of the building for not reconstructing the demolished building on any ground whatsoever. Once the Respondent landlord undertakes to reconstruct the building within a reasonable time then the broad compliance or Rule 17 is enough.

In the circumstances I direct that to allay any doubt in this regard the Respondent landlord will construct building within nine months from 23-11-90 the date the Petitioner vacate the premises and will intimate the District Magistrate for re inducting the Petitioner in accordance with Section 24(2) of the Act The Respondent landlord will give an undertaking to this Court within two weeks from today stating therein that landlord will construct the building within nine months from the date the Petitioner vacate the premises. The Petitioner will vacate the premises within one month from today. If the Respondent-landlord do not give undertaking within two weeks from today the Petitioner will not be evicted from the premises in dispute.

With the above observations the writ petition is accordingly disposed off.