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Abhinandan Lal Vs. the Iind Additional Dist. Judge, Etah and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 644-A of 1976
Judge
Reported inAIR1977All182
ActsUttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 21(1); Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 - Rule 17; Constitution of India - Article 226
AppellantAbhinandan Lal
RespondentThe Iind Additional Dist. Judge, Etah and ors.
Appellant AdvocateS.C. Varma and ;K.N. Tripathi, Advs.
Respondent AdvocateA.N. Bhargava and ;S.N. Agarwal, Advs.
DispositionPetition dismissed
Excerpt:
.....to only clause b of sub-section 1 of section 21 - clause a applies in cases of genuine need of landlord - clause b applies in case of bad condition of property requiring re-construction. (ii) hearing of writ petition - article 226 of constitution of india - while hearing writ petition high court cannot re-examine evidence - can be done only by court of appeal - while hearing writ petition high court not court of appeal. - - the prescribed authority has to be satisfied that the building requires demolition, that a proper estimate of expenditure for the proposed demolition and new construction has been made, that a plan has been duly prepared and sanctioned by the auhority concerned and that the landlord has a financial capacity for the proposed demolition and new construction. if a..........clause (a) of section 21 (1). rule 16 provides elaborate guidelines for such cases. none of the clauses of rule 16 states anything about the condition of the building nor lays down any guidelines for obtaining plans or certificates from engineers or about the means of the landlord to carry out the demolition and reconstruction.4. clause (a) of section 21 (1) applies to a case where the building is bona fide required by the landlord either in its existing form or after demolition and re-construction. it would be applicable even to a building which may not be dilapidated. if a building is a smell one or an old one or an inadequate one and the landlord requires it to be built anew so as to have a larger floor area or raise a new structure on the existing land for better utilisation he.....
Judgment:
ORDER

Amitav Banerji, J.

1. The petitioner is a tenant of a shop situated in Etah. The respondent No. 3 is the landlady of the said shop. She filed en application for the release of the building in the tenancy of the petitioner under Section 21 of the U. P. Urban Buildings (Regulations ofLetting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act. This application was allowed by the Prescribed Authority and his order has been affirmed by the Second Additional District Judge, Etah by his order dated 29th January, 1976. The landlady's need has been found to be genuine and bona fide and also comparatively greater than that of the tenant. The petitioner tenant has filed this writ petition on the ground that there is an error of law apparent on the face of the record in the order passed by the aforesaid authorities and that the order releasing the accommodation in favour of the landlady deserves to be quashed.

2. The principal contention on behalf of the petitioner is that there has been no compliance with the requirements of Rule 17 of the Rules made under the Act. It was contended that although the landlady had stated in her release application that the building was in a dilapidated condition and was required to be pulled down, yet the requirements of law as laid down in Rule 17 had not been complied with. It was contended that even if the application for release was one under Section 21 (1) (a) of the Act on the ground that the building was required by the landlady after demolition and new construction the provisions of Rule 17 were attracted and had to be fulfilled. In other words, the contention was that the provisions of Rule 17 were attracted to a case under Section 21 (1) (a) also where the building was required to be demolished and rebuilt. In support of his contention learned counsel relied on the provisions of Section 21 (1) and Rule 17 of the Rules made under the Act. It will be worthwhile to reproduce these provisions. Section 21 (1) (a) and (b) reads as follows:--

'21, 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 specified that any of the following grounds exist, 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.....'

The rest of the provisions of Section 21 are not necessary for the purpose of the case and are being omitted.

Rule 17 reads as follows:

'17. Application for release on the ground of demolition and new construction (Sections 21 (1) (b) and 34 (8))-- (1) Before allowing an application for release of a building under Section 21 (1) (b) on the ground that it is required for purposes of demolition and new construction, the Prescribed Authority shall satisfy itself-

(i) that the building requires demolition;

(ii) that a proper estimate of expenditure over the proposed demolition and new construction has been prepared;

(iii) that a plan has been duty prepared and conforms to the bye-laws or regulations of the local authority or other statutory authority under any law in that behalf for the time being in force; and

(iv) that the landlord has the financial capacity for the proposed demolition and new construction.'

3. It was contended that the words 'demolition and new construction' occur both in Clauses (a) and (b) of Section 21 (1) and, therefore, whenever a building was required by the landlord to be demolished for the purposes of reconstruction the provisions of Rule 17 would be applicable. I am unable to accept this contention for Rule 17 is specific and refers only to Section 21 (1) (b) and not to Clause (a) of Section 21 (1) of the Act. If it was intended that the above provisions would apply to a case under Clause (a) then the Rule would have said so. It will be noticed that Clause (a) refers to the bona fide requirement of the landlord of the building either in its existing form or after demolition and re-construction. It nowhere refers to the condition of the building. It is only when the building is in a dilapidated condition and is required for purpose of demolition and new construction that the provisions of Clause (b) would be attracted. It is, therefore, clear that the emphasis is on its dilapidated condition. A release order may be passed in eithercase-- as envisaged in Clauses (a) and (b) -- but the basis in the two cases is different. In the former the emphasis is on the bona fide requirement of the landlord and in the latter on the necessity to demolish the building because of its condition. The two grounds are entirely different. Rule 17 makes it clear that in cases governed by Clause (b) certain facts must be established to the satisfaction of the Prescribed Authority before the order of release is passed. This is to ensure that the case set up by a landlord is a genuine and bona fide one for the demolition of the building and for the construction of a new building. The Legislature has laid down the guidelines so that a landlord may not use this ground as a device to eject his tenant. The Prescribed Authority has to be satisfied that the building requires demolition, that a proper estimate of expenditure for the proposed demolition and new construction has been made, that a plan has been duly prepared and sanctioned by the auhority concerned and that the landlord has a financial capacity for the proposed demolition and new construction. These provisions have not been made applicable to a case under Clause (a) of Section 21 (1). Rule 16 provides elaborate guidelines for such cases. None of the clauses of Rule 16 states anything about the condition of the building nor lays down any guidelines for obtaining plans or certificates from engineers or about the means of the landlord to carry out the demolition and reconstruction.

4. Clause (a) of Section 21 (1) applies to a case where the building is bona fide required by the landlord either in its existing form or after demolition and re-construction. It would be applicable even to a building which may not be dilapidated. If a building is a smell one or an old one or an inadequate one and the landlord requires it to be built anew so as to have a larger floor area or raise a new structure on the existing land for better utilisation he may be given the necessary order of release. What is to be seen in such a case is the bona fide need of the landlord and not the condition of the building. In a case coming under Clause (b) the Prescribed Authority has to be satisfied that the building is in a dilapidated condition and is required for the purpose of demolition and new construction. In such a case under Clause (b) the release order is required so that the building could be demolished and re-constructed. Clause (b) does not say anywhere that it is required for the personal use of the landlord or any members of his family, It would thus be evident that under Clause (a) the emphasis is on the requirement of the landlord whereas under the Clause (b) the emphasis is on the dilapidated condition of the building. In view of the clear wordings of Rule 17 and the provisions of Clauses (a) and (b) of Section 21 (1) it is not possible to hold that the provisions of Rule 17 also apply in a case under Clause (a) of Section 21 (1) of the Act.

5. In the present case the land-lady in her release application had taken up both the grounds, namely, of her personal requirement and about the dilapidated condition of the building. The Prescribed Authority held that the application was one under Clause (a) and not under Clause (b) of Section 21 (1) of the Act. Before the Appellate Authority it was stated on behalf of the landlady that the application was one under Clause (a) of Section 21 (1). This fact has been noticed by the Appellate Authority. In this view of the matter it was not necessary at all to consider whether the requirements of Rule 17 had been fulfilled or not. In my opinion, the Appellate Authority rightly proceeded to consider the case of the landlady under Section 21 (1) (a) of the Act

6. The Appellate Authority considered the case of the parties and compared their needs. It ultimately concluded that the likely hardship to the landlady would be greater than that of the tenant. It has taken into consideration the various factors and circumstances and had given its finding. This finding is binding on this Court unless it can be shown that it is vitiated by an error of law apparent on the face of the record. Learned counsel for the petitioner contended that the Appellate Authority has taken into consideration irrelevant facts and circumstances to hold that the tenant's need and hardship would be less than that of the landlady. It was urged that the view taken by the Appellate Authority that the petitioner did not need the shop as he had suffered from illness, was 60 years old, and could assist his son in his business or start a new business with him, were all irrelevant considerations. I cannot agree. These were all relevant considerations. What was sought to be urged was that the evidence had not been properly consideredand the inference drawn from the evidence was improper. It is well settled that the High Court cannot reappraise the evidence on the record or see if the inference drawn from a piece of evidence is wrong. These are to be considered by a court of appeal only. The High Court in the exercise of its writ jurisdiction does not sit as a Court of appeal. (See Babhutmal v. Laxmi Bai, AIR 1975 SC 1297).

7. In my opinion, the Appellate Authority had taken into consideration relevant facts and circumstances in coming to its conclusion. I am further of the opinion that these circumstances were relevant circumstances and cannot be termed to be irrelevant circumstances. The finding arrived at by the Appellate Authority is in accordance with law and I find no manifest error of law in that order.

8. In view of the above this writ petition must fail and is accordingly dismissed with costs.


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