JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. The relevant facts are that the respondent-landlords filed an application under Section 21(1)(a)(b) of U.P. Act No. 13 of 1972 before the Prescribed Authority, Saharanpur, for release of a portion of house No. 7/805 situate in Mohalla Badtala Yadgar Unchcha Tilla, district Saharanpur under the tenancy of the petitioner.
3. The petitioner filed his written statement denying the allegations made in the release application.
4. The Prescribed Authority after going through the pleadings and evidence on record vide order dated 11.4.2001, dismissed the release application.
5. Aggrieved by the aforesaid order dated 11.4.2001 of the Prescribed Authority the respondent-landlords filed Rent Control Appeal No. 3 of 2004 before the appellate court which was allowed vide order dated 19.11.2005, hence this writ petition.
6. The counsel for the petitioner submits that the judgment and order dated 19.11.2005 of the appellate court is illegal, arbitrary and without jurisdiction and based on non-consideration of material evidence on record as such the same is liable to be quashed and that the appellate court has not considered that the application under Section 21(1)(a)(b) of U.P. Act No. 13 of 1972 was filed by the respondent-landlords for the need of his son Jai Kumar for commercial purpose whereas the accommodation in question is a residential one. The bar is provided by proviso 3(2) of Section 21 of the Act on this point and the Prescribed Authority has given his clear finding on this point provided by law and not taking it into consideration by the appellate court is wholly wrong, illegal, willful and lack of judicial consciousness.
7. He submits that the appellate court has held that the accommodation in dispute is in dilapidated condition but has not even considered that whether the respondent-landlords fulfilled the mandatory requirement of Rule 17 of the Act.
8. In this regard the Prescribed Authority has given clear finding that nowhere in the application or in evidence filed by the respondent-landlords it has been disclosed by them that they have financial capacity for reconstruction of the said building and it held that the respondent-landlords have failed to fulfil the mandatory requirement of Rule 17 of the Act and without complying with the mandatory requirement of Rule 17 the application under Section 21(1)(a)(b) of the Act could not be considered and the appellate court has neither considered nor set aside the findings recorded by the Prescribed Authority on this aspect.
9. He also submits that the appellate court without considering or setting aside the findings of the Prescribed Authority has illegally held that the building in question is in dilapidated condition and after demolition and reconstruction, it is bona fidely required by the landlords for starting the proposed business of his son Jai Kumar.
10. It is submitted by the counsel for the petitioner that the appellate court has not considered the question whether son of the respondent-landlords Jai Kumar and grand son Nitin Kumar are unemployed or not and it has also not even considered the material available on record and arguments raised in this respect that Devender Kumar son of the respondent-landlords expired and his son Sourabh is not doing business in the shop situate In Pansari Bazar, Saharanpur and in fact Jai Kumar and Nitin Kumar whose need has been set up by the respondents are doing business of stationery in the shop situate in Pansari Bazar, Saharanpur.
11. The counsel for the petitioner further submits that the walls of the disputed accommodation are 1-1/2 feet to 2 feet thick and the accommodation in dispute is not in dilapidated condition but the appellate court has wrongly held that it is in a dilapidated condition and that the petitioner is an old tenani of the accommodation in dispute and his own house is situated on a 'Tilla' or high ground which is about 15 feet height from the road level which is on first and ground floor. Due to the height of the house, the petitioner had taken the accommodation in dispute on rent and is using the same continuously for residential purposes and the petitioner has no other place on the ground floor and the appellate court has not considered this aspect of the matter.
12. It lastly submitted that the petitioner has tried his best to search other alternative accommodation but the accommodation could not be available and that the findings of the appellate court on the issue of bona fide need and comparative hardship in favour of the respondent-landlords are illegal, perverse, arbitrary and based on conjectures and surmises and are liable to be quashed.
13. The counsel for the respondent-landlords submits that there is no illegality or infirmity in the judgment and order dated 19.11.2005 of the appellate court and that the judgment and order dated 11.4.2001 of the Prescribed Authority suffers from manifest error of law as from perusal of paragraph 10 of the release application it is apparent that there is full compliance of Rule 17 of the Act, as such the Prescribed Authority has erred in coming to the conclusion that there is no compliance of Rule 17 of the Act.
14. He further submits that the appellate court after appreciating the entire evidence on record has rightly come to the conclusion that the building in question is in dilapidated condition and requires reconstruction and it is incorrect to say that the appellate court has given its finding by ignoring material evidence on record. The appellate court has found from the record that Jai Kumar and Nitin Kumar used to sit in the shop of Devendra Kumar only on temporary basis and it is not their independent business which could be said that the said shop of stationery is being run by Jai Kumar and Nitin Kumar whose need has been set up in the release application.
15. It is further submitted that at least more than three times the roof of the accommodation in question was changed by the petitioner-tenant which proves the condition of the building itself and the appellate court after considering each and every aspect of the matter and the evidence on record came to the conclusion that the accommodation in question is in dilapidated condition and requires demolition and re-construction.
16. It is next submitted that when the tenant himself is having an alternative accommodation, he should not be permitted to occupy the accommodation in question for any inconvenience caused to him due to some reason and the landlord is always entitled to get it released in his favour.
17. He also submits that even for the sake of argument it is accepted that the accommodation in question is not 150 years old but though the Court below has found that the said accommodation to be at least 70-80 years old which could not be in any manner said to be a newly constructed accommodation and even the case of the petitioner is accepted that the accommodation in dispute is not less than 80 years old, hence it can very well be said to be in dilapidated condition as it has lost its life.
18. The last submission of the counsel for the respondents is that since the accommodation in question is being used by the petitioner for commercial activities, as such there is no bar in releasing the accommodation in question for commercial activities.
19. In rebuttal it is submitted by the counsel for the petitioner that the disputed accommodation has been constructed prior to coming into force the U.P. Act No. 13 of 1972, as such the application under Section 21(1)(a)(b) of the Act is not maintainable.
20. It appears from the record that the landlord had moved an application under Section 21(1)(a)(b) of U.P. Act No. 13 of 1972 for release of the accommodation in dispute on the ground that the petitioner has a residential building adjacent to the disputed accommodation and the disputed accommodation is in dilapidated condition which needs new construction.
21. According to the World Book Dictionary the word "dilapidated" means falling to pieces, partly ruined or decayed through neglect. According to the New Shorter Oxford English Dictionary the word "dilapidated" means decayed, disrepair or partial ruin. Chiefly dilapidated, become dilapidated, fall into ruin.
22. The word "dilapidated" has not been defined under the Act and as such its common parlance is to be given preference read with the special context. The word "dilapidated" used in Section 21 of the Act is with regard to the context that the building has lost its life or its utility. The disputed building is about 150 years old as it is apparent from paragraph 2 of the release application. It has been constructed by bricks and the construction has been Joined by lime and mud and the roof rest on the wooden 'Kadi'. The finding of the Court below is that the life of such building is about 50-60 years old and thereafter it becomes unhabitable.
23. In my opinion, the word "dilapidated" has therefore, to be given a purposeful meaning that the building will become dilapidated after it loses its life which would depend only on the material used in construction on the region where it is situated on the wither conditions there, etc.
24. The appellate court has given a finding that the building and its structure have lost its life and utility. If a building is in dilapidated condition, new construction should normally be raised by demolishing the old one as is being done in other advanced countries except historical places. There is already paucity of space due to over-population and accommodation for more people is required.
25. The petitioner has own residential house just adjacent to the accommodation in dispute, which is being used by him for tying cattle. Analogy of Section 21(1)(b) of the U.P. Act No. 13 of 1972 would in cases not covered by Act No. XIII of 1972 apply. The petitioner is not only using the accommodation in dispute for tying his cows and buffaloes and endangering their life but uses it as a generator house, which amounts cruelty to animals. The court below has found that if the accommodation in question is not vacated the respondent-landlords will face difficulty for residential purpose and business also. The court below has further found that in case the accommodation in question is vacated the petitioner-tenant will not suffer any irreparable loss or injury as he has own residential building adjacent to the accommodation in dispute. He can shift his generator, scooter, cows, buffaloes from the disputed accommodation to his residential building.
26. For the reasons stated above, the findings of the appellate court that the building has lost its life do not require any interference by this Court. The petitioner will not suffer any irreparable loss or injury or comparative hardship in shifting his catties to some other convenient place from the dilapidated accommodation in dispute.
27. The writ petition is accordingly dismissed. No order as to costs.
28. Alternative arrangements be made by the petitioner for removing his catties and he will vacate and handover peaceful possession of the disputed accommodation to the landlords within a period of 10 days from today.