Allahabad High Court
Sri Karamat Ullah vs District Judge, Kanpur And Others on 19 April, 2000
Equivalent citations: 2000(3)AWC1900, 2000 ALL. L. J. 2542, 2000 A I H C 4493, (2000) 2 ALL RENTCAS 212, 2000 ALL CJ 1 799, (2000) 2 RENCR 546, (2000) 3 ALL WC 1900, (2000) 39 ALL LR 598
Author: J.C. Gupta
Bench: J.C. Gupta
JUDGMENT J.C. Gupta, J.
1. This is tenant's writ petition seeking quashing of the order dated 1.10.1981 passed by the prescribed authority and the order dated 19.7.82 passed by the District Judge (Annexures-4 and 7) to the writ petition respectively.
2. The dispute relates to residential quarter No. 2 situate in Ahata No. 101/54-A. Ahata Gammon Khan Colonelganj, Kanpur. Landlady-respondent No. 3 whose legal representatives are R.No. 3/1 to R-3/6 moved an application before the prescribed authority for the release of the aforesaid quarter with the allegations that the quarters situate in the aforesaid ahata are built of khaprail and kachcha walls with third class material and the constructions being very old have given their life ; that in view of the government policy to remove slums in the city and to provide a better and well built accommodation the quarters in the ahata are to be demolished and reconstructed as per the sanctioned plan : that with the passage of time the aforesaid quarters have become dilapidated as the tile shades have broken. Tattar and bamboos have lost their life, the walls have developed cracks and some of the quarters have fallen down. The quarter in question, therefore, has to be demolished and the land has to be utilised for the construction of latrine and bathroom, fuel storage and a part of courtyard for which a plan has already been got sanctioned by the landlady and she has financial capacity for the proposed demolition and new construction. In short the case of the landlady was that all the quarters situate in the ahata are in a dilapidated condition and require demolition and reconstruction and the landlady has already constructed three rooms in the adjoining piece of land after getting the plan sanctioned from the Development Authority and for the beneficial enjoyment of the aforesaid rooms, courtyard, latrine, bathroom and kothari for storage of fuel are to be reconstructed on the land underneath the disputed quarter and therefore the need of the landlady for demolition and reconstruction of the quarter in question is hard, genuine, pressing and bona fide.
3. The application for release was contested by the tenant-petitioner, inter alia on a number of grounds, the main ground being that besides the applicant-landlady. Smt. Bilquish Jahan Begum is also a co-landlady of the house in question and the application for release was not maintainable on account of her non-Joinder. The tenant also denied that the quarter in question is in a dilapidated condition and the same requires demolition and reconstruction. On the other hand his case was that landlady damaged the wall of the tenanted portion of the house in question while constructing the adjoining rooms. It was further stated that the landlady has in her possession open courtyard where she could easily construct the latrine, bathroom etc. if at all she required them. The landlady is residing in premise No. 40/70 Makhania Bazar, Kanpur far removed from the tenanted accommodation and she had no need for any additional accommodation. Smt. Mushtaw Sher Ali and Avwat have vacated their tenanted accommodation over which three rooms have been constructed and those rooms have been recently let out to Mohd. Hafiz and Rahmat Ullah which showed that there was no personal requirement of the landlady.
4. The parties adduced evidence before the prescribed authority including the reports of the experts. The learned prescribed authority treating the application for release to be under Section 21 (1) (b) of U. P. Act No. 13 of 1972 (briefly, the Act) came to the conclusion that the quarter in question is in a dilapidated condition requiring demolition. It was also found that there has been due compliance of the requirement of Rule 17. With these findings the prescribed authority allowed the landlady's application by the order dated 1.10.1981. Aggrieved by the said order the tenant petitioner preferred appeal under Section 22 of the Act before the District Judge, Kanpur, respondent No. 1. The lower appellate authority treating the landlady's application to be a composite application under Sections 21 (1) (a) and 21 (1) (b) of the Act affirmed the finding of the prescribed authority that the quarter in question is in a dilapidated condition and that requirements of Rule 17 have been fulfilled by the landlady. The lower appellate authority has also found that alternatively the case was also made out by the respondent even under clause (a) of Section 21 (1) of the Act because after demolition of the quarter in question, she required the land in question for the construction of latrine, bathroom and fuel storage to facilitate the user of the three rooms raised in the attached courtyard under a duly sanctioned plan. Therefore, the need of the landlady for the quarter in question for the purpose of demolition and reconstruction is genuine. It has been further found by the respondent No. 1 that the question of comparative hardship is not relevant and does not arise for consideration for the purpose of Section 21 (1) (b) and so far as clause (a) of Section 21 (1) of the Act is concerned, the hardship likely to be caused to the landlady is greater because of undue denial of the basic necessities such as that of latrine, bathroom and storeroom to facilitate the user of the three rooms and the courtyard as she has already built three residential rooms at substantial expenses.
5. Aggrieved by the aforesaid order the tenant has preferred this writ petition before this Court. Counter-affidavit and rejoinder-affidavits have been exchanged and the parties' counsel have been heard at length.
6. Sri N.K. Srivastava, learned counsel for the petitioner made an unsuccessful attempt in assailing the finding of fact recorded by the two authorities below on the question of condition of the building in question. Both the Courts below have concurrently found that the quarter in question is in a dilapidated condition and requires demolition. This finding of fact is based on appraisal of evidence and the learned counsel has not been able to point out that this concurrent finding of fact suffers from any manifest error of law or is perverse. Both the Courts below have further found concurrently that requirements of Rule 17 have been fulfilled by the landlady. No sufficient ground is made out for interference in these findings of fact.
7. However, Sri N.K. Srivastava, learned counsel for the petitioner vehemently argued that the application for release moved by the landlady was essentially an application under Section 21 (1) (b) of the Act but nowhere in the application or in the sanctioned plan, any provision has been made safeguarding the right of the tenant as envisaged under sub-section (2) of Section 24 of the Act. This submission of the learned counsel for the petitioner is not devoid of force. A plain reading of sub-section (2) of Section 24 makes it clear that provision made therein secures the interest of the tenant for the purpose of demolition and reconstruction. It confers a right on the tenant to move the District Magistrate under the provisions of this sub-section for re-occupation after the building is reconstructed, Sub-section (2) of Section 24 of the Act runs as under :
"Where the landlord after obtaining a release order under clause (b) of sub-section (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 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 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' liability to pay rent as aforesaid, be subjected 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."
8. 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 and the building shall, subject to the tenant' 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 and 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 on and new construction.
9. While Judging the powers of the Court in dealing with an application made under Section 21 (1) (b) of the Act, one cannot altogether-overlook the provisions of Section 24 (2) of the Act and Rule 17 which are both part of the same Statute. The provisions of Section 21 (1) (b), Section 24 (2) and Rule 17 have to be read in conjunction with each other and not in isolation in the context of the scheme of the Act. It is well-settled principle of interpretation of Statute that construction should be meaningful so as to make the statute workable and not make it futile. The Court should adopt that construction which suppresses the mischief and advances Justice. If we examine the provisions of Section 21 (1) (b) along with Section 24 (2) and Rule 17, under the scheme of the Act the only harmonial construction will be that the requirement of conditions of Rule 17 has been made essential with an object to ensure that the tenant's right of re-entry as enshrined in Section 24 (2) is not frustrated. Therefore, before an application under Section 21 (1) (b) is to be allowed it becomes the duty of the authority concerned to examine minutely the sanctioned plan submitted by the landlord for the construction of new building in order to ensure that the tenant's option of re-entry as safeguarded under subsection (2) of Section 24 will not be defeated or frustrated. Where in a given case, if no such provision is made in the plan submitted by the landlord for re-construction, it would follow that the tenant's right of reentry as guaranteed to him under Section 24 (2) of the Act has not been secured and where he is deprived of that valuable right which he could exercise on completion of new building, no order under Section 21 (1) (b) of the Act can lawfully be made.
10. In the present case even as per the own case of the landlady, the quarter in question which is in the tenancy of the petitioner being dilapidated requires demolition and reconstruction for the purpose of erection of latrine, bathroom and storeroom, etc. The plan was also got sanctioned for these constructions only. It is thus apparent that the constructions which the landlady intended to raise over the site after demolition of the quarter in question as per the sanctioned plan, will be having no space or accommodation therein in respect of which the tenant could exercise his right of re-entry as guaranteed to him under the provisions of sub-section (2) of Section 24 of the Act. The sanctioned plan produced by the landlady before the prescribed authority was thus in total disregard of Section 24 (2) of the Act and the same intended to make these provisions nugatory. This Court is, therefore, of the view that where the landlady intended to raise such new constructions after the demolition of the tenanted building which do not permit the tenant to exercise his option of re-entry under the provisions of sub-section (2) of Section 24 of the Act, no order of release could lawfully be made under clause (b) of Section 21 (1) merely on the basis that the building is in a dilapidated condition.
11. It is next to be examined whether the impugned order of release is sustainable by treating the release application of the landlady to be under clause (a) of Section 21 (1) of the Act? While putting restrictions on the right of the landlord for filing suits for eviction against the tenant under Section 20 of the Act, the Legislature thought it necessary to provide a speedy remedy to a genuine landlord who is in a bona fide and pressing need of the tenanted building. With this object, the Legislature in its wisdom has enacted Section 21 in the Act. Clause (a) thereof empowers the prescribed authority to order eviction of a tenant from the building under tenancy or any specified part thereof, on an application of the landlord made in that behalf. But before making such an order, the authority concerned has to, be fully satisfied that the building or a part thereof 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. The word 'requires' denotes a need and not a mere wish or desire. By adding the word, 'bona fide', the Legislature appears to have intended to emphasise that the need must be genuine and not frivolous or whimsical.
12. In the present case, the landlady in her release application came with the case that all the quarters in the ahata including the quarter in question are in a dilapidated condition and require demolition and reconstruction. In paragraph 10, she pleaded that the landlady in accordance with the sanctioned plan, has already constructed three rooms on the front side. In paragraph 10, she averred that the attached courtyard is lying vacant in possession of the landlady. In the next paragraph, she then vaguely stated that attached to the aforesaid rooms and courtyard, latrine, bathroom and a fuel storage are to be constructed. It is, therefore, clear that it was nowhere pleaded in clear words that the new constructions are bona fide required for the beneficial enjoyment and as essential amenities of the three rooms which have already been raised in the adjoining land. It was also nowhere stated or made clear that whether she herself was in occupation of these three newly constructed rooms or the same were in occupation of any member of her family or any person for whose benefit the quarter in question is required for demolition and reconstruction. The tenant petitioner in his reply/written statement specifically pleaded that after getting the rooms newly constructed in the adjoining land, the landlady has let out them to tenants and she herself lived in another locality, therefore, there was no personal requirement of the landlady for the quarter in question. Before this Court in the supplementary counter-affidavit, it has been stated on behalf of the landlady that after her death, her legal heirs are in occupation of the newly constructed adjoining rooms. This allegation is, however, denied by the tenant-petitioner. The prescribed authority did not at all consider the questions of bona fide need of the landlady and the comparative hardship. The lower appellate authority also devoted much of its energy in dealing with the questions whether the quarter in question is dilapidated and whether requirements of Rule 17 have been fulfilled. It is true that while upholding the order of the prescribed authority, the tower appellate court in a slipshod method has also gone into the questions of bona fide need and comparative hardship by treating the release application to be also under clause
(a) but a perusal of the order would show that the said questions have been dealt with in a scanty and enigmatic manner. Conclusions have been arrived at without there being any purposeful discussion of evidence. No specific finding has been recorded as to who is in actual occupation of the three newly constructed rooms nor any finding has been recorded on the question whether those three rooms are incapable of being used for dwelling purpose unless latrine, bathroom, fuel storage, etc, are built on the site after removal of the tenanted quarter. The lower appellate authority was further required to have examined the question if without disturbing the occupation of tenant, sufficient and suitable open land for the proposed construction of latrine, bathroom, etc. was already available with the landlady. And if not, the matter should have been probed further in the light of Rule 16 (1) (d) to find out whether the purpose could be achieved by releasing only a part of the tenanted accommodation in favour of the landlady, and by allowing the tenant to retain the other part. All these questions require investigation of facts which is the function of the fact finding authority and not of this Court in writ jurisdiction. Since no clear cut and positive findings have been recorded on these disputed facts, the case needs to be remanded to the lower appellate authority for a fresh decision.
13. For the reasons recorded above, this writ petition is allowed and the order of the lower appellate authority dated 19.7.82 is set aside and the case is sent back to the appellate authority with the direction that the appeal shall be restored to its original number and shall be heard and decided in accordance with law and in the light of observations made above, expeditiously preferably within a period of 3 months from the date a certified copy of this order is produced. In the circumstances of the case, the parties arc directed to bear their own costs.