JUDGMENT Anjani Kumar, J.
1. This writ petition was allowed by me vide order dated 15.4.2002 for the reasons to be recorded later on. Now here are the reasons for allowing the writ petition.
2. This writ petition by the landlord who filed an application under Section 21 (1) (b) of U. P. Act No. 13 of 1972 for the release of the accommodation in dispute on the ground that the same is in dilapidated condition and requires demolition and reconstruction. In support of the aforesaid application, the petitioner has filed an estimate of the experts, who said that the cost of reconstruction is about Rs. 50,000. The petitioner has also demonstrated that he has capacity to invest Rs. 50,000 and a building plan in accordance with the bye-laws of the concerned local authority was also filed. The prescribed authority has arrived at the finding that according to the report of the experts building in dispute is over 70 years old and is in dilapidated condition and requires demolition and reconstruction. The estimate of the demolition and reconstruction has been assessed Rs. 50,000 which according to the petitioner he processes. The site plan also demonstrates that it is prepared in accordance with bye-laws of the local authority. The application, therefore, was accepted by the prescribed authority, who directed that the tenant-respondent shall vacate the premises in dispute within two months and handover the vacant possession so that the petitioner-landlord could reconstruct the building. Aggrieved by the aforesaid order, the tenant-respondent preferred an appeal. The appeal has been allowed by the appellate authority on the ground that along with the application, no sanctioned plan prepared by the local authority concerned has been either filed or produced during the course of hearing and, therefore, the provisions of Rule 17 of the rules framed under Act No. 13 of 1972 has not been complied with and the prescribed authority has erred in holding that the building is required to be released under Section 21 (1) (b). Learned counsel for the petitioner has argued that a perusal of Rule 17 will demonstrate which is reproduced below that it does not require a sanctioned plan to be submitted at any stage. What it requires, is a plan prepared in accordance with the bye-laws of the local authority concerned. Rule 17 is reproduced below :
"17. Application for release on the ground for 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 purpose of demolition and new construction, the prescribed authority shall satisfy itself :
(i) that the building require 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."
3. Learned counsel for the petitioner has further submitted that it is nowhere stated by the tenant that the plan that has been filed by the landlord, is not in accordance with the bye-laws of the local authority. Learned counsel for the petitioner has relied upon a decision of this Court in 2000 ACJ 799. In para 7 of the aforesaid judgment which is quoted below, this Court laid down regarding the compliance of Rule 17. Para 7 of the aforesaid judgment is quoted below :
"7. This sub-section provides that when after obtaining a release order under Clause (b) of Sub-section (1) of Section 21, the tenanted building is demolished and reconstructed 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 him the new building or such one of them as the District Magistrate after considering his requirements thinks fit and thereupon the tenant shall be liable to pay as rent for such building the amount equivalent to 1% per month of the cost of the construction thereof including the cost of demolition of old building but not including the value of the building (sic land) and the building shall, subject to the tenant's liability to pay rent be subject to the provisions of the Act. Under this sub-section, therefore, the tenant has an option of re-entry. It is well-settled that before an application for release of a building under Section 21 (1) (b) is allowed, the landlord has to satisfy the authority concerned that the requirements under Rule 17 have been fulfilled. The requirements are :
(1) that the building requires demolition ;
(2) that the proper estimate of the expenses over the proposed demolition and new construction has been prepared ;
(3) 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 (4) that the landlord has the financial capacity for the proposed demolition and new construction."
4. From the perusal of the aforesaid para 7, it is abundantly clear that the appellate authority has committed an error in reading the Rule 17 so far as it held that the Rule 17 requires a sanctioned plan. In my view the order of the appellate authority deserves to be set aside and is hereby set aside. In normal course, the writ petition may have been remanded back to the appellate court after setting aside the order of the appellate authority but in the facts and circumstances of the present case, I think it proper in the interest of justice that it is not necessary to remand the matter back to the appellate authority, as all the materials are already available on record.
5. In this view of the matter and in view of the law laid down by the decision referred to above, the appeal filed by the tenant is liable to be dismissed and is hereby dismissed. Learned counsel for the tenant has submitted that the prescribed authority has not fixed any time schedule nor has it directed that after reconstruction of the building, the tenant shall have a right to re-enter the premises in accordance with the provisions of Rule 17 read with Section 24.
6. I, therefore, direct that the order of the appellate authority is set aside and the appeal filed by the tenant is dismissed and the order of the prescribed authority is confirmed with the direction that the tenant will handover the possession of the premises in dispute to the landlord within two months from the date a certified copy of this order is produced before the prescribed authority and the prescribed authority shall pass the necessary direction, directing the petitioner-landlord to demolish and reconstruct the building within reasonable time with a further direction permitting the tenant to re-enter the premises to the extent of the area in his occupation and fix rent payable, after reconstruction in accordance with law.
7. This writ petition, therefore, is allowed and order accordingly.