Smt. Shashi Goyal vs IInd Additional District Judge and Another

M.C. Agarwal, J.—These are two petitions under Article 226 of the Constitution of India challenging the orders passed by the IInd Additional District Judge, Bulandshahr, in Rent Control Appeal Nos. 40 and 39 of 1991 whereby he allowed the appeals of the tenant-Respondents against the orders of the prescribed authority ordering their eviction from the respective shops on the ground that the building is in a dilapidated condition and is required for purposes of demolition and new construction. The learned Additional District Judge came to the conclusion that the building is not in a dilapidated condition and, therefore, dismissed the landlord''s petitions. Feeling aggrieved, the Petitioner landlord has filed these petitions.

I have heard Sri M. S. Misra, learned Counsel for the landlord Petitioner, and Sri Ajeet Kumar, learned Counsel for the respective tenant Respondents.

Since the matter is common in both the petitions, the same were heard together and are disposed of by this common order.

The Petitioner landlady owns two adjoining shops, bearing municipal Nos. 156 and 157, in mohalla Gandhi Road, Khurja, district Bulandshahr. Shop month as rent.

The Petitioner landlady moved separate petitions before the Prescribed Authority for their eviction claiming that the shops in question are in a dilapidated condition and are required for the purposes of demolition and new construction.

The prescribed authority allowed the applications and ordered the eviction of the respective Respondents. On appeal, however, the learned Additional District Judge reversed the finding and held that the shops were not in a dilapidated condition.

Sri M. S. Misra, learned Counsel for the Petitioner, strenuously contended that the finding recorded by the court below is strenuously and could not have been arrived at by the appellate court when the trial court, that is, the Prescribed Authority, had held, after appreciating the evidence on the record, that the building was in a dilapidated condition. I have been taken through the material on the record. It is settled law that in a writ petition under Article 226 of the Constitution of India, the High Court cannot reappraise the evidence and record its own findings unless the findings of the court below is perverse. Having been taken through the material on record, I did not find any illegality in the finding recorded by the Additional District Judge that may necessitate interference in the exercise of discretionary extraordinary jurisdiction under Article 226 of the Constitution of India.

There is, however, yet another reason why these writ petitions cannot succeed. Section 21 of the Act provides for proceedings for release of building under occupation of a tenant. The relevant portion of Sub-section (1) of Section 21 of the Act is as under:

Proceedings for release of building under occupation of tenant. -- (1) The Prescribed Authority may. on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely:

(a) that the building is bona fide 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, or where the landlord is the trustee of a public charitable trust, for the objects of the trust;

(b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction.

Clauses (a) and (b), reproduced above, would show that they deal with different situations. Clause (a) deals with eviction of a tenant on the ground of personal need of the landlord while Clause (b) deals with eviction of tenants who are occupying buildings that are dilapidated and need demolition and new construction. Where a landlord seeks eviction of a tenant on the ground that the building is bona fide required by him, the building need not be dilapidated at all. It may be a perfectly sound building. Yet the landlord may, after eviction of the tenant, demolish it and construct a new building to suit his requirements and taste. On the other hand, the purpose of eviction under Clause (b) is to replace the dilapidated buildings and carry on new construction so that the land which is becoming scarce day-by-day may be better utilised. The intention under sub clause (b) is not the ouster of the tenant completely and allow the landlord to occupy the new constructed building or to let it out to some other person than the tenant who vacated the dilapidated building. This is clarified in unambiguous words by the provisions of Section 24 of the Act that stands as under:

Option of re-entry by tenant. -- (1) Where a building is released in favour of the landlord and the tenant is evicted u/s 21 or on appeal u/s 22, and the landlord either puts or causes to be put into occupation thereof any person different from the person for whose occupation according to the landlord''s representation, the building was required, or permits any such person to occupy it, or otherwise puts it to any use other than the one for which it was released, or as the case may be, omits to occupy it within one month of such extended period as the Prescribed Authority may for sufficient cause allow from the date of his obtaining possession or, in the case of a building which was proposed to be occupied after some construction or reconstruction, from the date of completion thereof, or in the case of a building which was proposed to be demolished omits to demolish it within two months or such extended period as the Prescribed Authority may for sufficient cause allow from the date of his obtaining possession, then the Prescribed Authority or, as the case may be, the District Judge, may, on an application in that behalf within three months from the date of such act or omission, order the landlord to place the evicted tenant in occupation of the building on the original terms and conditions, and on such order being made, the landlord and any person who may be in occupation thereof shall give vacant possession of the building to the said tenant, failing which, the prescribed authority shall put him into possession and may for that purpose use or cause to be used such force as may be necessary.

(2) 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 buildings 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 of 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 thereof (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, and where the tenant makes no such application or refuses or fails to take that building on lease within the time allowed by the District Magistrate, or subsequently ceases to occupy it or otherwise vacates it, that building shall also be exempt from the operation of this Act for the period or the remaining period, as the case may be, specified in Sub-section (2) of Section 2.

These provisions clearly indicate that the outgoing tenant has the option to take the reconstructed building on a monthly rent to be determined and that will be equal to one per cent of the cost of construction. Such rent would always be several times higher than the old rent that was being paid for the dilapidated building and some of the tenants may decline to take the newly constructed building on rent. They cannot be forced to do so and if the tenant declines, the landlord will be free to deal with the newly constructed building as he likes. But if a landlord does not show his willingness to let the outgoing tenant occupy the reconstructed building, then he cannot be allowed to proceed under Sub-clause (b) of Section 21(1) of the Act. A Petitioner who seeks eviction of a tenant on the ground of the building being dilapidated should, therefore, in his petition express his willingness that he is willing to let out the reconstructed accommodation to the tenant whose eviction he is seeking. If he does not do so, it is the duty of the Prescribed Authority to inquire from him specifically whether he is so willing. If the landlord says that he is not willing to let out the accommodation is the reconstructed building, to the tenant, the matter should not be proceeded further under Clause (b). A landlord, who needs the reconstructed building for his own use, must take recourse to the provisions of Section 21(1)(a) and Sub-clause (b) is out of bounds for him even though the building may be dilapidated and in a ruinous condition. The tenant has the option to continue to live in a building that is in a stale of ruins and such a tenant cannot be evicted by a landlord, who is unwilling to let out the reconstructed accommodation to such tenant, except under the general law of tenancy contained in the Transfer of Property Act.

In the present case, in her petition, the landlady Smt. Shashi Goel did not state that after reconstruction, she is willing to let out the accommodation to the existing tenants and at no stage of the proceedings, the authorities below asked her about it. At the hearing of these petitions, I specifically questioned Sri M. S. Mishra, learned Counsel for the Petitioner, whether the Petitioner landlady is willing to let out the reconstructed shops to the tenants. He answered in an emphatic ''no'' stating that the landlady will require the newly reconstructed accommodation for her own use. This cannot be permitted. If she needed the reconstructed building for her own use, then she should have moved an application u/s 21(1)(a) of the Act. Having set up a case exclusively under Clause (b), she cannot be allowed to say that she will not let out the accommodation to the tenants whose eviction she is seeking. For this reason also, the landlady is not entitled to any relief in these writ petitions.

For the above reasons, the writ petitions are dismissed with costs to the tenant Respondents.