Shri Ramphal and Another vs District Judge and Others

Rajesh Tandon, J.—Heard Sri V.K. Kohli, Sr. Advocate assisted by Sri I.P. Kohli, learned Counsel for the Petitioners and Shri Ramji Srivastava, learned Counsel for Respondents.

Both the parties have submitted their written statements and have agreed that let the matter be finally decided at the admission stage.

By the present writ petition, the Petitioners have prayed for a writ of certiorari quashing the orders dated 1st February, 2005 passed by the Respondent No. 1 in Rent Control Appeal No. 44 of 2004 Ram Phal and Anr. v. Poonam Agarwal and judgement dated 23rd March, 2005 passed by the Respondent No. 2 in P.A. Case No. 27-A of 2002, Smt. Poonam Agarwal v. Shri Ramphal and Anr.

After hearing both the parties following points arise for determination:

Factual Matrix of the case,

Whether the building requires demolition,

Compliance of Rule 17 of U.P. Act No. 13 of 1972,

Requirement of Rule 24 Sub-Clause (2) of U.P. Act No. 13 of 1972,

Interference under Article 226 or Article 227 of the Constitution of India.

FACTUAL MATRIX OF THE CASE:

Briefly stated, Respondent No. 3 has filed an application u/s 21(1)(b) of U.P. Act No. 13 of 1972 stating therein that the premises no 26/3 Chander Nagar, Dehradun was purchased from the previous owner Sri Duni Chand Gulati, son of late Sri Khan Chand Gulati by virtue of sale deed dated 12th December, 2000 and the Petitioners are the tenants of the accommodation at the rate of Rs. 100/- per month.

The landlord/Respondent No. 3 has stated that the premises in dispute is in a dilapidated condition in as much as there are cracks in the walls and door has become rotten. It was also stated that the floor has also left its place as the building is an old one and being in dilapidated condition can fall at any moment.

In paragraphs 7, 8 and 9 of the application, it has been stated by the Respondent No. 3 that a proper estimate and map has been prepared in accordance with the bye-laws of the municipal board and he has the financial capacity to re-construct the premises.

In Schedule-Ka, a part of the property has been shown as a shop, which is in possession of Sri Ramphal Petitioner No. 1 and property No. Kha is a shop, which is in possession of the Petitioner No. 2. The release application was opposed by the Petitioners stating therein that the property in question is in a sound condition and the same is not in a dilapidated condition.

In paragraph 47 of the objections, the Petitioners have stated that white-washing and other minor repairs have not been made properly.

The landlord has replied in paragraph No. 23 of his objection that it is not a simple case of repairs and the application filed by the Petitioner u/s 28 of the Act No. 13 of 1972 is not maintainable.

The prescribed Authority has framed following points while deciding the application u/s 21 of U.P. Act No. 13 of 1972:

1 . ? |

2 . ? ? ? ? ? ? ?, ? ? |

3 . ? ? ? ? ? ? |

4 . ? ? ? ? ? ? ? ? |

The prescribed authority vide his order dated 23rd March, 2004 has allowed the application u/s 21(1)(b) of the Act. Aggrieved by the aforesaid order, appeal was preferred. The appellate court has also dismissed the appeal on 1st February, 2005.

On behalf of the Respondent No. 3, she has filed his own affidavit and has stated that the property is in a dilapidated condition. Paragraph 16 of the affidavit to that effect is quoted below:

? 4 ? ?, ? | ? ? ? | ? - ? ? ? ? ? | ? ? ? | ? ? ? ? ? ? ? | ? ? ? ? ? ? ? ? ? | ? ? ? 28 ? ? 13 1972 ? ? ? | ? ? ? | ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? |

WHETHER THE BUILDING REQUIRES DEMOLITION

So far as the point No. 1 is concerned, courts below have recorded a finding that there is need to demolish the building in question as the building is in a dilapidated condition.

In paragraph 26 of the affidavit, it has been stated that the map has been prepared by Sri P.N. Bahukhandi, who has also inspected the premises and according to his report, the building is in a dilapidated condition.

Sri Surendra Singh has filed the affidavit on behalf of landlord, who has stated that even poly-sheet has to be put on the roof because in rainy season, it starts leaking. The relevant paragraph to that effect is quoted below:

? ? ? ? , ? ? ? ? ? ? ? ? , ? , ? ? ? ? ? ? ? ? ? ? | ? ? ? ? ? ? ? ? |

An affidavit was also filed by Mohd. Jaquir, who is a resident of Chandar Nagar and knows Ramphal, has also deposed that in rainy season due to the oozing of the water, the plastic-sheet has to be put. Relevant paragraph 3 is quoted below:

? ? ? ? , ? ? ? ? ? ? ? ? , ? , ? ? ? ? ? ? ? ? ? ? | ? ? ? ? ? ? ? ? |

Sumer Chandra and Ved Prakash have also filed their affidavits in support of the Respondent No. 3, it has been stated as under:

? ? ? ? , ? ? ? ? ? ? ? ? , ? , ? ? ? ? ? ? ? ? ? ? | ? ? ? ? ? ? ? ? |

The affidavit of Sri P.N. Bahukhandi also shows to the following effect:

That the deponent inspected the building on 16-10-2002 and found as under:

(i) The wall is of bricks in lime and BAJARI MORTAR. The plaster has fallen, walls have cracked and are building (sic. bulging) out (sic. at) various places.

(ii) The roof of the both of the shops is of brick and SURKHI BAJARI material. Roof of the both the shops is having many cracks and it is leaking badly. The occupants of the shops have put tarpaulin sheet under roof for safety of their belonging goods.

(iii) The walls of shops have many cracks of all side and may collapse at any moment within heavy rainfall.

(iv) That both the shops are having wooden frames and doors. The frames and doors of the shops are also infected with white ants and also very old are in damage condition.

(v) The shops are too old and has out lived its utility.

The report of Sri P.N. Bahukhandi also shows that the building is very old and has out lived its utility. Relevant paragraph of the report is quoted below:

I have through (sic. thoroughly) inspected shops. Both shops are of about 70 years old construction. The construction is in a dilapidated condition. The wall is of bricks in lime and BAJARI MORTAR. The plaster has fallen, walls have cracked and are building (sic. bulging) out (sic. at) various places.

On behalf of the Petitioners, the building was inspected by Smt. Kamlesh Nautiyal, who has given the certificate. Relevant paragraph of the certificate is quoted below.

I have inspected the said shops. Both shops are old construction. The said shops are maintained by the tenants Shri Ramphal and Shri Inderpal. The roof of both shops are leaking due to having malwas on the roof. The walls of shops have no cracks. The both shops are having wooden frames and doors are in good conditions.

As will appear from the aforesaid report that the own architect of the Petitioner has reported to the effect that roofs of both the shops are leaking.

Learned Counsel for the Petitioners has stated that he has filed an application for local inspection on 25th August 2003. Application was filed by the Petitioners stating therein to the following effect:

? ? ? ? ? , ? ? ?, ? , ? . 43/03 . . . ?. ? ? , 25 - 9 - 03 ? ? ? ? ? ? ? ? ? ? ? ? ? ? | ? ? ? ? ? ? ? - ? ? ? ? ? ? |

? ? ? ? ?, ? ? ? ? ? ? ? | ? ? ? ? |

Both the courts below have referred the report produced by the Petitioners as well as the Respondent No. 3. Sri P.N. Bahukhandi. He has described the building in a dilapidated condition and his report is also supported by photographs Paper No. 17-Ka to 23-Ka, which shows that there are cracks in the walls and doors are infected by white ants.

Sri V.K. Kohli, learned Counsel for the Petitioners has submitted that once an application for inspection has been filed, it was incumbent upon the authorities to have inspected the building before the release order is passed.

So far as the inspection is concerned he has referred the judgement of Kishori Lal Shah v. IVth Addl. District Judge, Nainital 1991 (2) A.R.C. 297, where the learned Single Judge of the Allahabad High Court has directed for inspection in proceedings u/s 21(1)(a) of U.P. Act No. 13 of 1972.

A reference of case-law is clearly distinguishable in as much as the controversy was with regard to the availability of the accommodation with the landlord and as such the aforesaid case is not applicable to the facts of the present case.

A perusal of the record shows that both the experts have not disputed that there are cracks in the roof. The architect of the Petitioner has supported his case that it is being due to keeping of the malva on the roof, whereas the architect of the landlord has reported that the "roof of both the shops is of brick and SURKHI BAJARI material. Roof of the both the shops have many cracks and it is leaking badly. The occupants of the shops have put tarpaulin sheet under roof for safety of their belonging goods." The aforesaid report coupled by the photographs 17-Ka to 23-Ka has fully established that the building requires demolition and re-construction.

The evidence on the record further establishes that the photographs have been filed Paper No. 17 Ka to 23 Ka and there appears to be cracks on the walls and doors are infected with white ants and therefore, both the courts below have recorded a finding that the building is in a dilapidated condition as alleged by the landlord.

In view of the aforesaid finding there is no requirement of inspection as both the experts have already visited the spot and this fact was further established from the photographs.

In Harish Chandra Gupta v. Swatantra Kumar Jain 1999 (2) A.R.C. 22, relying upon the judgement of Ramesh Chandra v. IIIrd Additional District Judge, Aligarh and Ors. 1995 (1) ARC 181, it has been held that the law does not require that the building should be in imminent danger of falling down in order to establish that it is in a dilapidated condition requiring reconstruction. Observations are quoted below:

In Ramesh Chandra and Ors. v. IIIrd Additional District Judge, Aligarh and Ors. 1995 (1) ARC 181, the Court emphasized that the law does not require that a building should be in the imminent danger of falling down to be treated as dilapidated one requiring reconstruction. I do not find any legal infirmity in the finding recorded by the authorities below that the disputed accommodation was in dilapidated condition.

In Suresh Chandra v. IVth Additional District and Sessions Judge 1998 (2) ARC 192, the word dilapidated condition has been defined and it has been held that the dilapidated condition should not be understood of getting the building on the verge of collapse. The observations are quoted below:

It was argued by the learned Counsel for the Petitioner that the Petitioner has been living peacefully in the disputed premises since long and the building has not fallen down and therefore, the Courts below should have presumed that the building was not in a dilapidated condition. This submission is not correct because the law does not require that a building should be in the imminent danger of falling to be treated in a dilapidated condition requiring re-construction. In fact waiting for the building to get on the verge of collapse and then to allow its demolition and reconstruction will be putting human life itself in jeopardy and would be a negation of the basic principle of safety and security underlying the provision of Section 21(1)(a) of the Act. This view is fortified by the law laid down in the case of Ramesh Chandra and Ors. v. IIIrd Additional District Judge, Aligarh and Ors. 1995 (1) ARC 181 and Smt. Shanti Devi v. 1st Additional District Judge, Kanpur and Ors. 1983 (1) ARC 20.

Relying upon the judgement of Sri Shyam Lal Goel v. VIth Additional District Judge, Meerut and Ors. 1979 ALJ 1258 and Ram Avtar v. VIIth Additional District Judge, Moradabad 1982 (1) ARC 124, it has been held in Kishan Lal Gupta v. IXth Additional District Judge, Ghaziabad that for 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 interference that the building is not in a dilapidated condition. The relevant paragraphs are quoted below:

The word ''dilapidated'' means in a state of disrepair but it is not necessary that the building should be in a fallen state or in ruinous condition. See the cases of Shyam Lal Goel v. Vith Additional District Judge, Meerut and Ors. 1979 ALJ 1258 and Ram Avtar v. VIIth Additional District Judge, Moradabad 1982 (1) 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 principles of safety and security, underlying the provisions of Section 21(1)(b) of the Act and for this proposition I am supported by the decision rendered in the case of Smt. Shanti Devi v. 1st Additional District Judge, Kanpur and Ors. 1983 (1) ARC 20.

It has also been stated in paragraph 2 of the written submission filed on behalf of Respondent No. 3 that the building in question is in a dilapidated condition and the ceiling as well as the walls of the accommodation in dispute have been cracked and the doors and windows of the accommodation in question have been ruined.

Both the parties have submitted their written arguments. Learned Counsel for the Petitioner has submitted following case law:

1983 (2) A.R.C. 44 Narendra Swarup Bhatnagar v. District Judge, Saharanpur and Ors.

1991 (1) A.R.C. 355 Bihari Lal v. Brahma Singh and Anr.

1991 (2) A.R.C. 297 Kishori Lal Shah v. IV Additional District Judge, Nainital and Ors.

1987 (2) A.R.C. 453 Smt. Radha Shukla and Ors. v. 7th ADJ, Kanpur and Ors.

1997 (1) A.R.C. 572 Smt. Shashi Goyal v. 2nd ADJ, Bulandshahr and Anr.

1997 (2) A.R.C. 173 State of U.P. v. A.D.J./Special Judge, E.C. Act, Dehradun and Ors.

However, learned Counsel for the Respondents has submitted following case laws in the present case:

Ranjeet Singh Vs. Ravi Prakash, ,

Sri Kali Ram v. Mirza Wakar Ali and Ors. reported in Uttaranchal Decisions 2005 (1) Page 205.

However, from the perusal of the various decisions cited by both the parties, it is evident that in the present case the report of the Architect Engineer Sri P.N. Bahukhandi as well the affidavit fully establishes that the premises in question is an old one and the construction is in dilapidated condition. The plaster of wall has fallen, walls have been cracked, roof of both accommodation, having many cracks and leaking badly. The report further shows that the occupants/Petitioners have put tarpaulin sheet under roof. The report also shows that the walls of building from all sides may collapse at any moment.

However, the affidavit of Kamlesh Nautiyal also establishes this fact that The said person, in his report, has specifically stated that "the roof of both the shops are leaking due to heavy malwa on the roof".

Learned District Judge has also considered the entire evidence on the record and has recorded a finding that the building requires demolition and re-construction.

In view of the aforesaid facts and circumstances, I have no hesitation in holding that the premises requires demolition and re-construction.

COMPLIANCE OF RULE 17 OF U.P. ACT NO. 13 OF 1972

A perusal of the affidavit Paper No. 12 Ka/9 to 12Ka/13 as will appear from the financial status of various banks, it will appear that the Respondents No. 3 has financial capacity, the findings of the courts below requires no interference under Article 226 or Article 227 of the Constitution of India.

Further both the courts below have recorded a finding that the landlord has financial capacity as will appear from the affidavit Paper No. 12 Ka/9 and 12 Ka/13 as the amount has already been deposited in various banks, the estimate has been prepared to the extent of Rs. 56,000/- as will appear from the affidavit Paper No. 13 Ka. A site plan has already been prepared according to the byelaws.

In view of the aforesaid findings recorded by the Prescribed Authority and the Appellate Authority, the compliance of Rule 17 having been made the application has rightly been allowed u/s 21(1)(b) of U.P. Act No. 13 of 1972.

REQUIREMENT OF RULE 24(2) OF U.P. ACT NO. 13 OF 1972

Learned Counsel for the Petitioners has submitted that since it is a case where the accommodation was released u/s 21(1)(b) of the U.P. Act No. 13 of 1972, therefore, there should be time limit for getting the accommodation reconstructed.

Suffice it to state that Section 24 Sub-clause (2) of U.P. Urban Buildings (Reg. Of Letting, Rent and Evic.) Act, 1972 sufficiently safeguards the interest of the tenant. In the case of Suresh Chandra v. IVth Additional District and Sessions Judge 1998 (2) ARC 192, it has been held as under:

The Petitioner has got a right of entry under the provisions of Section 24(2) of the Act which provides that where the landlord after obtaining a release order under Clause (b) of Sub-section (1) of Section 21 demolishes a building and constructs a new building or building on its site, then the District Magistrate may, on an application being made in that behalf by the original tenant within such time as may be prescribed, allot to him the new building or such one the them as the District Magistrate after considering his requirements thinks fit and thereupon that tenant shall be liable to pay as rent for such building an amount equivalent to one percent per month of the cost of construction there (including the cost of demolition of the old building but not including the value of the land) and the building shall, subject to the tenant''s liability to pay rent as aforesaid, be subject to the provisions of this Act. This provision, thus, safeguards the interest of the Petitioner.

In view of the above, the Petitioners are at liberty to avail the remedy u/s 24(2) of the U.P. Act No. 13 of 1972.

INTEREFERNECE UNDER ARTICLE 226 or Article 227 OF THE CONSTITUTION OF INDIA

Learned Counsel for the Respondent No. 3 has relied upon the judgements in Ranjeet Singh Vs. Ravi Prakash, and Kali Ram v. Mirza Waker Ali and Ors. 2005 (1) Uttaranchal Decisions Page 205, where it has been stated that this Hon''ble Court cannot interfere into the findings of facts, recorded by both the courts below.

Relying upon the judgement of Surya Dev Rai Vs. Ram Chander Rai and Others, , the Apex Court in Ranjeet Singh Vs. Ravi Prakash, , has held as under:

As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution of India also, it has been held in Surya Devi Rai that the jurisdiction was not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.

In the case of India Pipe Fitting Co. Vs. Fakruddin M.A. Baker and Another, , the Apex Court has held as under:

The limitation of the High Court while exercising power under Art. 227 of the Constitution is well settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however, erroneous those may be. It is well settled and perhaps too late in the day to refer to the decisions of the Constitution Bench of this Court in Waryam Singh and Another Vs. Amarnath and Another, where the principles have been clearly laid down as follows : at p. 217 of AIR.

This power of superintendence conferred by Art. 227 is as pointed out by Harries C.J., in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, to be exercised most sparingly and only in appropriate cases in order to keep to Subordinate Courts within the boundary of their authority and not for correcting mere errors.

In Shami Ahmad v. District Judge Etah and Ors. 2000 (2) ARC 543, it has been held that the findings recorded by both the courts below with regard to the dilapidated condition of the shop being findings of fact cannot be allowed to challenge in a writ jurisdiction under Article 226 or Article 227 of the Constitution of India. The observations are quoted below:

It appears that the Respondent No. 3 filed an application for release u/s 21(1)(b) of the Act claiming that the building in question (shop) was in dilapidated condition and the same was required for demolition and new construction. The application filed by the Respondent No. 3 was objected to and opposed by the Petitioner contending that the building in question was not in dilapidated condition and that no case for release was at all made out. Parties produced evidence, oral and documentary in support of their cases including the reports of the experts regarding the condition of the shop in dispute. The Prescribed Authority after going through the entire evidence on the record, came to the conclusion and recorded a clear and categorical finding that the building in question was in dilapidated condition. Having recorded the said-finding, he has released the building in question u/s 21(1)(b) of the Act by judgement and order dated 03-03-1997. Challenging the validity of the said order, an appeal was filed by the Petitioner before the Appellate Authority. The Appellate Authority also affirmed the findings recorded by the Prescribed Authority and dismissed the appeal by its judgement and order dated 24-07-2000. Hence, the present petition.

CONCLUSION:

In Harish Chandra Gupta v. Swatantra Kumar Jain and Ors. 1999 (2) ARC 23, it has been held that the law does not require that the building should be in an imminent danger of falling down to be true as a dilapidated one requiring reconstruction.

In view of the above, I find no infirmity in the orders passed by the courts below while exercising the jurisdiction under Article 226 or Article 227 of the Constitution of India.

Moreover, in the present days, when there is a vast development throughout in the filed of science and technology and the status of human being having been raised to a standard of high living, old buildings are required for reconstruction as they have outlived their life, Petitioners have been given a right to occupy the premises as well as by the status itself.

In view of the aforesaid observations, consequently the writ petition is dismissed. Petitioners are allowed four months'' to vacate the premises provided undertaking is given by 15th July, 2005. Upto date rent shall also be paid to the Respondents.

Landlord shall also take-steps for reconstruction, if possible, within a period of one year. Liberty is given to the Petitioners to invoke the provision of Section 24 Sub-clause (2) of U.P. Act No. 13 of 1972, which shall be decided by the District Magistrate in accordance with law.

Accordingly, writ petition is dismissed.