Heard Shri Avadhesh Kumar, learned counsel for the petitioner, Shri Shishir Chandra, learned counsel for the opposite party nos.3 to 6 and perused the record.
By means of the present writ petition, the petitioner has challenged the impugned order dated 29.05.2015 passed by District Judge, Lakhimpur Kheri thereby dismissing the appeal and order dated 24.01.2015 passed by Prescribed Authority (Rent Control)/Civil Judge (Senior Division), Lakhimpur Kheri by which release application filed by opposite party nos.3 to 6 under Section 21 (1) (b) of Urban Buildings (Regulation of Letting, Rent and Eviction) Act (hereinafter referred as U.P. Act No.13) of 1972 has been allowed.
Facts in brief as submitted by Shri Avadhesh Kumar, learned counsel for the petitioner are that petitioner is a tenant of a shop situated at Main Road in front of Tahsil, Mohalla, Nai Basti, Lakhimpur, District-Kheri.
On 25.01.2008, landlords/opposite party nos.3 to 6 filed an application for release of shops under Section 21 'A' of U. P. Act No.13 of 1972, accordingly, P. A. Case No.01/2008 was registered before the Prescribed Authority (Rent Control)/Civil Judge (Senior Division), Lakhimpur Kheri and on 09.07.2008, Dr. Saryu Prasad Varma who is the original tenant of the shop filed his written statement.
On 20.08.2008, landlords/opposite party nos.3 to 6 moved an application for impleadment under Order 1 Rule 10 (2) C.P.C. along with an application for amendment under Order 6 Rule 17 C.P.C. before the opposite party no.2 to implead the name of the petitioner/Dr. Saryu Prasad Varma s/o Bhagwan Deen Varma, R/O Mohalla Rajgarh, Lakhimpur, Pargana and District Kheri as opposite party in the memo of application for release, allowed by order dated 25.03.2009.
Thereafter, on 19.09.2009, petitioner filed his written statement that he is the existing tenant of the shop for the last 30-31 years with his brother (original tenant) Dr. Saheb Lal Varma, s/o Sri Bhagwan Deen Varma, has already paid the entire rent of the shop regularly to the landlords.
On 19.03.2012, opposite party nos.3 to 6 again moved an application for amendment in the memo of release application, allowed by order dated 02.11.2012 passed by Prescribed Authority (Rent Control)/Civil Judge (Senior Division), Lakhimpur Kheri.
On 19.12.2013, landlords/opposite party nos.3 to 6 moved another application for amendment under Order 6 Rule 17 C.P.C. to which petitioner filed his objection, allowed by order dated 05.02.2014 passed by opposite party no.2. The said order has been challenged by the petitioner by filing Writ Petition No.37 (RC) of 2014, disposed of by order dated 12.03.2014 which on reproduction reads as under :-
"By means of this writ petition, the petitioner has challenged the order passed by the Prescribed Authority allowing the amendment application.
It has been submitted by the learned counsel for the petitioner that the amendment application was filed after conclusion of arguments and when a date has been filed for delivery of judgment. He, therefore, states that the amendment application should not have been entertained at this stage.
Be that as it may. This court is not inclined to interfere at this state. In case the Prescribed Authority decides the case against the petitioner and occasion arises for the petitioner to challenge the same, it will be open for the petitioner to press all the grounds that has been taken in this writ petition assailing the order impugned.
With the aforesaid observations, the writ petition is disposed of. "
In addition to the above said facts, petitioner's filed an application under Order 7 Rule 11 C.P.C., rejected by order dated 24.04.2013 passed by Additional Civil Judge (Senior Division), Court No.2, Lakhimpur Kheri, challenged by filing Writ Petition No.111 (R/C) of 2014, disposed of by order dated 25.11.2014, operative portion of the same reads as under :-
"In view of what has been discussed above, I do not find any sufficient ground to interfere with the orders impugned in this writ petition. The Prescribed Authority is fully competent and empowered to consider the objections raised by the petitioner with respect to maintainability of the release application for want of notice, payment of prescribed court fee and the maintainability of the release application.
The writ petition is, therefore, finally disposed of with the direction that the Prescribed Authority shall consider the maintainability of the release application for want of statutory notice, and other objections raised on behalf of the petitioner at the time of final disposal of the release application."
Lastly by order dated 24.01.2015, opposite party no.2 allowed the release application filed by the opposite party nos.3 to 6 under Section 21 (1) (b) of the U. P. Act No.13 of 1972, challenged by the petitioner by filing Rent Appeal No.2 of 2015, dismissed by order dated 29.05.2015 passed by District Judge, Lakhimpur Kheri.
Shri Avadhesh Kumar, learned counsel for the petitioner while challenging the impugned orders submits that the same are contrary to law as while allowing the application filed under Section 21 (1) (b) of the U. P. Act No.13 of 1972, all four requirements of Rule 17 of U. P. Act No.13 of 1972 have not been followed and ruling given by the opposite party nos.3 to 6 have wrongly been relied upon.
It is further submitted by Shri Avadhesh Kumar, learned counsel for the petitioner that the courts below have erred in holding that building is in dilapidated condition and require demolition. Hence, the impugned orders under challenged in the present writ petition are unsustainable and liable to be stayed.
Shri Avadhesh Kumar, learned counsel for the petitioner further submitted that if the re-entry of the petitioner is allowed in the shop in question at the same place by the landlords/opposite party nos.3 to 6 as per provisions under Section 24 of U. P. Act No.13 of 1972, then in that circumstances, landlords may be permitted to reconstruct the building in pursuance to the impugned orders.
Shri Shishir Chandra, learned counsel for the opposite parties does not dispute the above submission. However, he submits that re-entry of the petitioner in the shop shall be allowed after being constructed only within the parameter of under Section 24 of U.P. Act No.13 of 1972.
I have heard learned counsel for the parties and gone through the records.
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:
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 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 U. P. Act No.13 of 1972 that stands as under:
24. Option of re-entry by tenant. -- (1) Where a building is released in favour of the landlord and the tenant is evicted under Section 21 or on appeal under Section 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 21demolishes 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.
There is a lacuna in U.P. Act No. 13 of 1972 in asmuch as it does not provide any time limit for the landlord to reconstruct after getting possession in proceedings under section of the Act. This lacuna can be filed up by providing time limit in the order itself while allowing release application under the said section. Accordingly, it is directed that within eight months from taking possession landlord shall demolish and shall make new constructions and handover the same to the tenant. The rent of the newly constructed portion shall be Rs. 1,500/- per month inclusive of all taxes etc. The newly reconstructed portion, which is to be handed over to the tenant, must contain four rooms of average dimensions and other amenities. It is further directed that if within 8 months from taking possession new construction is not made and handed over to the tenant then since after 8 months landlord shall be liable to pay damages to the tenant at the rate of Rs. 1,500/- per month till new construction and delivery of possession of the newly construction portion to the tenant. (See Syed Jalil Abbas v. Mohd. Yamin AIR 2004 SC 3683).
Further, Rule 17 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (13 of 1972) reads as under :-
"17. Application for release on the ground far 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 duly 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."
In the instant matter, from the material on record, the position which emerges out is that both the courts below have given a concurrent finding of fact that the mandatory requirements as provided under Rule 17 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (13 of 1972) has been fulfilled by the landlord and taking into consideration the said fact, the release application moved by the opposite party nos.3 to 6 under Section 21 (1) (b) of the U. P. Act No.13 of 1972 has been allowed by opposite party no.2 and the appeal was dismissed by opposite party no.1. So keeping in view the above said concurrent finding of facts given by the court below, I do not find any good ground to interfere in this matter while exercising the power of judicial review under Article 226 of the Constitution of India. (See Abdul Gaffer v. H. S. Srinivasa Setty (dead) by Lrs. 2002 (1) ARC 129, Thakur Madan Mohanji Maharaj (Sri) and another v. VII Additional District Judge, Mathura and others 2002 (1) ARC 47 and Basanti Bai (Smt.) v. Vith Additional District Judge, Kanpur and another 2004 (2) ARC 718) Taking into consideration the above said facts as well as law laid down by this Court in the case of Smt. Shoshi Goyal v. IInd Additional District Judge, Bulandshahr and another 1997 (1) ARC 572 and S. Subramanimum, Chairman' and Managing Director. Central Bank of India and others v. State of U. P., and another1995 (5) ARC 463, the tenant/petitioner is directed to vacate the shop on or before 30.04.2016 and handover the peaceful possession to the landlords. Thereafter, landlords shall reconstruct the same as per sanctioned plan within a period of one and half years and after completion, offer of the possession of the shop shall be given to the tenant/petitioner as per provisions of Section 24 of U. P. Act No.13 of 1972. However, if the landlords/opposite party nos.3 to 6 fail to construct the shop within a period of one and half years, then they shall give a compensation of Rs.1500/- per month to the petitioner till the shop is offered to the petitioner.
With the above observations, the writ petition is disposed of.
Order Date :- 25.2.2016 Mahesh