1. Abdul Rahim Khan filed an application under Section 21(1)(b) of the U.P. Act No. XIII of 1972 (in short the "Act") for release of the house in dispute against Km. Aysha Sultan and Smt. Jahan Ara Malik. A written statement was filed by Smt. Malika Jahan Ara Begum denying and disputing the contentions and averments made by the respondents in the release application. The Prescribed Authority by order dated 24.09.1985 dismissed the release application filed under section 21(1)(a) of the Act after recording a finding that the building is not in a dilapidated condition. Thereafter, an Appeal under Section 22 of the Act was filed by the landlord, which too was dismissed by order dated 25.05.1986. Against the said order, Writ Petition No. 13840 of 1986 was filed by the respondents-landlord. The said writ petition was decided by order dated 10.05.2000 and the matter was remanded to the Appellate Court. The Appellate Court by order dated 31.07.2010 allowed the Appeal No. 110 of 1985 and directed the petitioner to vacate the house in dispute within three months. Being aggrieved and dissatisfied with the order dated 31.07.2010, the present writ petition has been filed by the petitioner.
2. Heard learned counsel for the parties and perused the record.
3. At this juncture in order to adjudicate the controversy involved in the matter, it would be appropriate to reproduce Section 24(2) of the U.P. Act No. XIII of 1972 (in short the "Act"), which runs as follows:-
"Where the landlord after obtaining a release order under Clause (b) of subsection (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 described, 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 per cent 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."
4. The only contention of the learned counsel for the petitioner is that though admittedly the house in dispute is more than 125 years old but he claims right of re-admission as the lower Appellate Court has found that the house in dispute is in a dilapidated condition.
5. Learned counsel for the petitioner has submitted that the respondent may be directed to construct the new building after demolition within a stipulated period of time and suitable portion may be allotted to him for his residential purpose.
6. In support of his contention, learned counsel for the petitioner has also referred to the decisions of this Court in the case of Riazur Rahman Khan and others Vs. IInd Additional District Judge, Rampur and others, 2006(2) ARC, 434, Om Prakash Gupta Vs. IVth A.D.J. Kanpur Nagar and others, 2006(2) ARC 164 and Sunderlal Agarwal Dharmashala Trust Vs. District Judge thorugh the IInd A.D.J. Farrukhabad and another, 2009 (1) ARC 153, wherein a direction was given to the landlord to reconstruct the premises in dispute within a stipulated period of time and offer suitable portion to the tenant on the rent fixed in accordance with Section 24(2) of the Act.
7. I am afraid, the aforesaid decisions are of no help to the petitioner. The Apex Court in the case of Raval and Company Vs. K.G. Ramakrishnan (AIR 1974 SC 818), has held that "Any general observation cannot apply in interpreting the provisions of an Act, unless the Court has applied its mind to and analyse the provisions of that particular Act." Judgement has to be read as a whole and any observations in the judgement have to be considered in the lights of the facts and circumstances of the Case. Ratio decendi is binding in subsequent cases. All general observations made in a case are not binding. The observation made in the case of Riazur Rehman and Sunder Lal (Supra) in my view do not purport to lay down any proposition of law or any general binding rule. However, the observation made in a case by the Court between the parties would be binding on them.
8. A bare perusal of Section 24(2) of the Act clearly goes to show that no time frame has been provided therein for reconstruction of the premises after getting possession from the tenant in pursuance to the Release Order passed under Section 21(1)(b) of the Act. Although, Section 24(2) of the Act interalia provides that where the landlord after obtaining a release order under Clause (b) of subsection (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 described, 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 per cent per month of the cost of construction thereof.
9. In the case of Radhey Shyam Rastogi Vs. Ashish Kumar and another (Writ A No. 41799 of 2003) also similar plea was raised by the tenant for direction to the landlord to reconstruct the disputed premises after demolition within a stipulated period of time. However, the said plea was rejected by this Court and it was held as follows:-
"So far as letting out the newly constructed portion is concerned, the landlord has already given an undertaking to that effect and therefore, no further orders are required on this issue. It has to be kept in mind that the release was filed in 1981 now after about thirty years the cost of construction would have gone up manifold, therefore, no time limit as mentioned in Sinderlal Agarwal's case (supra) can be fixed."
In the present case also, an application under Section 21(1)(b) of the Act was filed in the year 1984 and now after about 28 years, the cost of construction in the present matter also would have gone up manifold, therefore, no time limit as requested by the petitioner can be fixed.
10. In this view of the matter and the argument advanced on behalf of the petitioner, this writ petition is dismissed and the order of the lower Appellate Court is confirmed. However, the respondents/landlord is directed to reconstruct the disputed premises within a reasonable period of time after obtaining possession from the tenant. It will open for the petitioner to file an application under Section 24(2) of the Act before the concerned District Magistrate, after the construction of a new building, who will pass the order in accordance with law as provided under Section 24(2) of the Act.
11. After the judgment was dictated, learned counsel for the petitioner urged that at least three months time may be granted to him for vacating the premises in question. The learned counsel for the landlord did not raise any objection to it.
12. As urged by the learned counsel for the petitioner, three months' time is granted to the petitioner to vacate the premises in dispute provided the petitioner give his undertaking in the form of an affidavit before the prescribed authority within one month from today specifically stating therein that she will handover the peaceful possession of the said accommodation to the respondents-landlord without inducting any third person within a period of three months from today.
13. In the event of default of any of the aforesaid conditions, the respondents-landlord will be at liberty to proceed to evict the petitioner, if necessary by coercive process with the aid of police force.
Order Date :- 25.4.2012 Arun Court No. - 7 Case :- WRIT - A No. - 64921 of 2010 Petitioner :- Smt. Malika Jahan Ara Begum Respondent :- Abdul Rahim Khan (Now Dead) And Others Petitioner Counsel :- Ramendra Asthana Respondent Counsel :- V.K. Dixit Hon'ble Shashi Kant Gupta,J.
Re: Civil Misc. Impleadment Application Dated 25.04.2012 This is an Impleadment Application filed by the applicant namely Malik Shah Nawaz Wali Khan stating that the property in dispute was purchased by him on 20.09.1996, as such, he is the necessary and proper party to the present writ petition.
Earlier also, the applicant Malik Shah Nawaz Wali Khan had moved a similar application for impleading him as party before the lower Appellate Court in Appeal No. 110 of 1985. The said application was rejected by order dated 31.07.2010 holding that the property, which has been purchased by the applicant, is not the disputed portion of the property and the said application was filed with malafide intention to delay the proceeding of the case. It was also held by the lower Appellate Court that the applicant is neither a necessary party nor his rights are affected.
It is also notable that the release application was filed in the year 1984 and matter is pending since last 28 years but unfortunately till date the matter has not attained finality. The Appellate court below has already held that the property in dispute was not the property, which has been purchased by the applicant, as such, the applicant is neither a necessary party nor his rights are affected.
The impleadment application was rejected on 31.07.2010 by the Court below but the said order was never challenged by the applicant. Today, when the matter was taken up for final disposal after several adjournments as unlisted, the applicant filed the present impleadment application. It appears that the present application has been filed by the applicant mainly to delay the disposal of the present writ petition.
It is also notable that even though the present writ petition is pending since 24.10.2010, the impleadment application has been filed by the applicant today i.e. after more than 1-1/2 years without any plausible explanation with regard to delay. Thus, the impleadment application filed at the last stage of the writ petition without challenging the earlier order of the court below rejecting the impleadment applicant can not be accepted as bonafide.
In view of the above, the impleadment application is dismissed.
Order Date :- 25.4.2012 Arun