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SRI CHUNNE ALIAS GULAM JILANI AND OTHERS versus A.D.J., ALLD. AND OTHERS

High Court of Judicature at Allahabad

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Sri Chunne Alias Gulam Jilani And Others v. A.D.J., Alld. And Others - WRIT - A No. 24063 of 2002 [2007] RD-AH 13587 (6 August 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Judgment reserved on 26.7.2007

                                             Judgment delivered on 6.8.2007

         Civil Misc. Writ Petition on No. 24063 of 2002

Sri Chunne alias Gulam Jilani and others.              Petitioners

                                          Versus

Additional District Judge, Court no.4 Allahabad

and others.                                                              Respondents

Counsel for the petitioners:-  Sri Vishnu Gupta, Advocate

Counsel for the respondents:- Sri M.K. Gupta, Advocate                          

Hon'ble Rakesh Tiwari, J

             Heard counsel for the parties and perused the record.

                 This writ petition has been filed for quashing the order dated 31.5.2002 passed by the Additional District Judge, Court No. 4, Allahabad in Rent Appeal No. 48 of 1990 whereby the appeal was allowed setting aside the order dated 12.1.90 passed by the Prescribed Authority/ IInd Addl. Civil Judge ,Allahabad in P.A. Case No.24 of 1997.

        The respondents landlord filed P.A. Case No. 24 of 1987 under Section 21(1) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972  (hereinafter referred to as the U.P. Act No. 13 of 1972) before the Prescribed Authority/ IInd Addl. Civil Judge, Allahabad alleging themselves to be the landlords of house no. 152/154, Shahganj, Allahabad measuring 780 sq. meters in which the petitioners are tenants in common at the rate of Rs.12/- per month.

      It was pleaded in the release application that the building in tenancy of the petitioners is a very old construction and 3/4th portion of it has already fallen down. It was averred that at present there exist only two small Kotharies and a verandah. The construction is a kachcha one with Khapraila  (tiled) roof the walls of which have also developed cracks with passage of time and the remaining construction can also fall down any time, hence the building requires demolition and reconstruction. It was also stated in the application that the landlords have already got a plan sanctioned on 26.2.85 from Allahabad Development Authority, Allahabad and they have the financial capacity to undertake demolition and reconstruction of the building.

In the release application bonafide need of the landlords for their own use and occupation after its reconstruction was also set up.

However, by order of the Prescribed Authority dated 11.9.1987 the release application was confined only to Section 21(1)(b) of U.P. Act No. 13 of 1972. Thus, in the instant writ petition, the only question for consideration is whether the need of the landlords under Section 21(1)(b) of U.P .Act No. 13 of 1972 for demolition and reconstruction is bonafide or not.

The petitioners contested the release application by filing written statement alleging that the building though old can still survive for quite some time and does not require demolition and reconstruction. It was alleged that their father is tenant in the building for last about 70 years and the release application is a device to evict them.

The Prescribed Authority vide judgment dated 12.1.90 dismissed the release application.

Aggrieved by the judgment of the Prescribed Authority the landlords filed Rent Appeal No. 48 of 1990 before the Appellate Authority which was allowed by the Additional District Judge, Court no.4, Allahabad vide judgment dated 31.5.2002, hence this writ petition.

The counsel for the petitioners submits that before the Prescribed Authority the respondents-landlord did not press their application under Section 21(1)(a) of U.P. Act No. 13 of 1972 and for surplus land and pressed the application under Section 21(1)(b) of U.P. Act No. 13 of 1972; that the Prescribed Authority held that the report of the expert filed on behalf of the landlords has not given the basis on which he arrived at the conclusion that the house was in dilapidated condition; that on the other hand the Prescribed Authority  relied on the expert report of Sri B.C. Mittal and Mr. Mohd. Iqbal filed by the tenants who gave details on the basis of which he reached to the conclusion that house in dispute was not in dilapidated condition and there was no danger whatsoever to human life; that the Prescribed Authority also held that the landlord also did not place on record any evidence regarding his capacity to reconstruct the disputed house. As regards the order of the lower appellate Court it is submitted that by the impugned order the Court has illegally held that the application for release was maintainable only under Section 21(1)(b) and not under Section 21(1)(a) for surplus land as the landlord did not press release application under Section 21(1)(a) and for surplus land; that the appellate Court relied on the report of expert Sri S.K. Vidyarthi on the ground that he had made inspection of the disputed house in the light of sanction plan on the basis of letter dated 26.2.1985 and rejected the report of Sri B.C. Mittal only on the ground that he made inspection on the request of tenants;

He further submits that the findings of appellate Court for rejecting the expert report of Sri B.C. Mittal and placing reliance on report of Sri A.K. Vidyarthi, are perverse and based on surmises and conjecture; that the report of expert Syed Mohd. Iqbal has also been disbelieved on surmises and conjecture, although there was no material on record to indicate that he gave his report with object of any benefit to the tenant, no reason was assigned for non considering the affidavits of Mohd. Nazir and Mohd. Yaqub; that the appellate Court only on the basis of age of the house held that it was dilapidated condition and required demolition.

He also submits that the appellate Court also has not taken into consideration the fact that the landlords had not placed on record their willingness to make compliance of Section 24 of U.P. Act No. 13 of 1972, which is evident from the following facts.

(i) Landlords filed a sanction plan before the Prescribed Authority and the aforesaid plan shows that the landlord propose construction of two shops on the ground floor one manager room and one toilet only. He specifically stated in para 12 of the release application that he will construct only ground floor accommodation.

(ii) That it is also stated that premises in dispute was let out for residential purpose and open land commercial purpose, which is not disputed. The landlords have not placed on records of Courts below that they will construct any residential portion, which may be provided to the tenant under Section 24 of U.P. Act No. 13 of 1972.

     In support of the above submissions, the counsel for the petitioners has relied upon the following rulings.

1. 2000(2) ARC-212, Karmatullah versus District Judge Kanpur and others; and

2. 1997 ARC(1) 572 Smt. Shashi Goyal versus IInd Additional District Judge, Bulandshahar,

       He also submits that the appellate Court has committed manifest error of law by releasing entire western portion of the disputed house as such the writ petition is liable to be allowed with costs.

The counsel for the respondents submits that the appellate Court has taken into consideration the entire evidence on record and has thereafter come to the conclusion that the building is in dilapidated condition; that it has also taken notice of the admission of the petitioners- tenant in paragraph 13 of their written statement that their father is tenant in the building for the last more than 70 years and thus at the time of decision by the appellate Court the building was more than 85 years old; and that the appellate Court  has given cogent reasons for placing reliance on the report of Sri A.K.Vidyarthi who is a qualified Architect and for discarding the report of Sri Mittal and Junior Engineer Syed Mohammad Iqbal.

The counsel for the respondents has relied upon the following findings of the appellate Court, which are quoted below.

^^ bruk gh ugha fo}ku v/khuLFk U;k;ky; us vihykFkhZSx.k izkFkhZx.k@Hkou Lokehx.k dhvksj ls Jh ,0ds0 fon~;kFkhZ  bathfu;j rFkk muds }kjk nkf[ky ''k'kiFk Ik= dkxt la[;k 37&c  ij fo'okl u djus dk tks vk/kkj vius fu.kZ; esa n'kkZ;k gS] og vk/kkj Hkh dkuwuh ekU;rkvksaa ds iw.kZr;k foijhr gS A fo}ku fu;r izkf/kdkjh us Jh ,0ds0 fo|kFkhZ dh fjiksVZ dh blfy, frjLd`r dj fn;k fd fdl vk/kkj ij Jh fo|kFkhZ  dk fu"d"kZ  vk/kkfjr gS A eSaus vius fu.kZ; ikfjr djrs le; Jh ,0ds0 fo|kFkhZ }kjk nkf[ky ewy vk[;k dkxt la[;k 34&c dk fof/kor ifj'khyu fd;k rks esSaus ;g ik;k fd Jh fo|kFkhZ  us viuh vk[;k ls bl rF; dk Li"V  izek.k Ik= fn;k gS fd mUgksaus Jh eks0 '''kks,c o eks0 uk;kc [kku ds lkFk bykgkckn fodkl izkf/kdj.k }kjk Lohd`r Iysu ds ifjizs{; esa ekSads dk fujh{k.k fd;k A mUgksaus viuh vk[;k esa iz'rxr Hkou dk Li"V mYys[k fd;k gS A mldh ,d ,d nhokjksa Nrkaas rFkk vk; ds okor Li"V vk[;k nh gS A mUgksaus ekSds ij fookfnr Hkou dks th.kZ '''kh.kZ gkyr esa ikrs gq, ;g Hkh mfYyf[kr fd;k gS fd blesa jgus ls ekuo thou dks [krjk iSnk gks ldrk gS ftlds QyLo#Ik bldks /koLFk djkdj fuekZ.k fd;k tkuk vko';d gS A^^"

The finding of the appellate Court for discarding the report of Syed Mohammad Iqbal is as under:-

   ^^ tgkW rd  Jh lS;n eksgEen bdcky }kjk nkf[ky '''kiFk Ik= la[;k 41ch@1 yxk;r 41c@2 dk dk iz'u gS] ;g xzkeh.k vfHk;a=.k lsok esa bykgkckn esa twfuf;j bathfu;j ds in ij rSukr gSA bUgksaus Lor% vius Lrj ls  'kiFk Ik= nkf[ky djds bl ckr dh iqf"V dj nh gS fd ;g fgrc/n~ O;fDr gS bUgksaus vfHk;a=.k lsok esa dk;Zjr gsksrs gq, fdjk;snkj dks ykHk igqWpkus ds mns'; ls fn;k gS A tgkW rd 'ks"k 'kiFkdrkZ x.k ukUgwW] eksgEen 'kkchj [kkWu rFkk fu;kt vgen dk iz'u gS] ;g lHkh fgrc/n~ lk{khx.k izrhr gksrs gS] D;ksafd os fdlh izdkj ls tqMs gq, gS A^^

The appellate Court has also given specific reasons for discarding the report of Sri B.C. Mittal filed on behalf of petitioners-tenant.  The relevant finding is as under:-

^^ Ik=koyh ij miyC/k tckonsgh dkxt la[;k 19&d feu- eksgEen 'kkchj [kWk ds iSjk 13 esa bl rF; dh Li"V #Ik ls Lohd`r dh x;h gS fd os vkSj muls igys muds firk yxHkx 70 o"kZ iwoZ igys edku ekfyd ds le; ls   vf/kokl djrs jgs A bl izdkj ls Lo;a eksgEen 'kkchj [kkWu ds fdjk;snkj ds dFkukuqlkj de ls de fooknxazLr Hkou dh vk;q lu~ 1987 ls 70 o"kZ  jgh gS tks orZeku ls yxHkx  85 o"kZ  gks pqdh gS A bl izdkj ls Jh feRry bathfu;j  feu0 izfri{khx.k@izR;FkhZx.k@fdjk;snkjku }kjk nkf[ky ;g vk[;k dh iz'uxr fookfnr Hkou th.kZ 'kh.kZ voLFkk esa ugha gS vkSj mlls ekuo thou ;k lEifRr dks [krjk ugha gS] vfo'oluh; izrhr gks tkrh gS A bruk gh ugha Jh feRry us viuh vk[;k esa iz'uxr fookfnr Hkou ds ckjs esa dksbZ vk[;k ugha nh gS ftlls iqu% vkHkkl gksrk gS fd ;g vk[;k nqjHkkouk ls izsfjr gksdj izfri{khx.k@izR;FkhZx.k@fdjk;snkjku dks ykHk igqwpkus ds mn~s'; ls nh x;h gSA tc fd blds foijhr Jh fo|kFkhZ us viuh vk[;k esa iz'uxr fookfnr Hkou dh vk;q dks yxHkx 100 Ok"kZ n'kkZ;k gS A ^^      

Thus the contention of the petitioners-tenant that lower appellate Court erred in relying upon the expert report of Sri A.K.Vidyarthi and in discarding the report of the experts of the petitioners tenant is not sustainable as cogent reasons were given by the appellate Court in this regard. The findings of the appellate Court cannot be said to be perverse or in ignorance of any material evidence on record to warrant interference by this Court.

The appellate Court has also recorded a categorical finding that there is a sanctioned plan and the landlords have financial capacity to undertake and reconstruction of the building, hence they have made full compliance of Rule 17 of the Rules framed under the Act.

In so far as the second submission of the counsel for the petitioners that the landlords have not shown their willingness to comply with the provisions of Section 24 of the Act is concerned, the counsel for the respondents submits that the aforesaid apprehension stands dispelled after the landlords filed a supplementary counter affidavit dated 1.2.2005 wherein they have given an undertaking to let out back portion to the petitioners tenant to ensure compliance of Section 24 of the Act.

It is worthwhile to mention here that in view of the objections by the tenants that the building proposed to be raised by the landlords as per sanctioned plan dated 26.2.85 consist of only non residential portion on the ground floor and residential portion on the first floor, while they are tenants of residential portion on the ground floor. In such circumstances, the respondents landlord in order to show their bonafide submitted another building plan for sanction before Allahabad Development Authority, Allahabad on 30.4.2005. However, the petitioners tenant raised frivolous objection before Allahabad Development Authority, Allahabad about pendency of the instant writ petition before this Court as a result of which Allahabad Development Authority, Allahabad rejected the  said building plan.

It is thus, evident on the face of record that the petitioners tenant are themselves delaying the process for demolition and reconstruction of the building so that they may succeed in perpetuating their illegal possession over the disputed building and harass the landlords by delaying construction of new building in its plea for ulterior motives.

It has been the consistent case of the landlords that the petitioners tenant have sublet the disputed building to one Latif Khan and are themselves living in their own newly constructed house No.151 Shahganj, Allahabad. He has relied upon the assertions made in this regard in paragraph 14 of the release application is quoted above.

" 14. That the opposite parties have also sub let the house in dispute to one Sri Latif Khan and they themselves are living in another tenanted house no. 182, Shahganj, Allahabad owned by Hazi Jainuddin and opposite party no.1 is living in a newly built and constructed adjacent house no. 151, Shahganj, Allahabad along with his family members. The opposite parties have also owned three more house nos. 126,127 and 163 Shahganj, Allahabad which are in their use and occupation."

       The said assertion was reiterated in paragraph 5 of the supplementary counter affidavit of the landlords dated 1.2.2005 filed before this Court. Paragraph 5 of the said affidavit is reproduced below.

          "5. That it is relevant to mention here that a pucca building towards right painted with yellow and green colour as shown in the said photograph belongs to the petitioner. He has in fact no need and had sub let the tenanted portion to one late Latif Khan. The said fact has been specifically pleaded in paragraph 14 of the release application."

Perusal of the photograph of the disputed building and the adjoining newly constructed building also shows that the disputed building is in completely dilapidated condition while adjoining new constructed building on the right side painted with yellow and green colour belongs to the tenants as they have not denied this fact in paragraph 7 of the supplementary counter affidavit which is as under:-

          "7. That the contents of paragraph 5 of the affidavit are wrong, incorrect and hereby denied. No portion has been let out to late Latif Khan as alleged. Latif Khan is husband of Smt. Hamida Begum d/o late Abdul Majeed Khan the original tenant. Smt. Hamida Begum and his husband were occupying the premises in question on their own right. The alleged photograph was not filed before the Court below and cannot be considered in the present writ petition."

 It is apparent that they do not want the disputed building to be reconstructed and are placing impediment. The petitioners already constructed and own adjoining building while the disputed building is in completely dilapidated condition, which they have sublet. In such circumstances, there cannot be equity in favour of the petitioners and the writ petition deserves to be dismissed.

For the reasons stated above, the writ petition is accordingly dismissed with exemplary cost of Rs.10,000/- to be paid to the landlords within one month from today. The petitioners may also hand over vacant and peaceful possession of the tenanted portion of the building to the landlords within 15 days from today.

Dated 6.8.2007

CPP/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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