ASHARFI DEVI Vs. SIXTH ADDL DISTRICT JUDGE

JUDGEMENT

(1.) This is a petition under Article 226 of the Consti tution of India arising out of proceedings under the U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, hereinafter referred to as the 'act'. The petitioner it, the landlady. Respondent No. 2 is the tenant of the accommodation in dispute. An application was filed by the petitioner under Section 21 (1) (a) and (b) of the Act for release of the disputed accommodation on the ground that the condition of the accommodation in question was too dilapidated and it required demolition and new construction. It was also stated that she required the disputed building for her own purposes after reconstruction. The second portion of the application was ultimately given up and the case proceeded on the basis that the application was made under Sec tion 21 (1) (b) of the Act only. The prescribed authority, by judgment dated 16th August, 1978 recorded a finding that the accommodation in dispute is in a highly dilapidated condition and as such it requires demolition and reconstruction. The prescribed autho rity was further of the view that the provisions of Rule 17 of the Rules framed under the Act have been complied with and as such the application was allowed by the prescribed authority. Against the decision of the prescribed authority date 16th August, 1978 an appeal was filed before the District Judge under Section 22 of the Act. The appeal was ultimately allowed by the 6th Additional District Judge, Farrukhabad on 30th of March, 1979 and the-application under Section 21 of the Act moved by the petitioner was rejected. The judgment dated 30th March, 1979 has been impugned in the present writ petition. I have heard the learned counsel for the parties. It may be stated at the outset that both the prescribed authority as well as the appellate Court have recorded a categorical finding of fact that the accommodation in dispute is dilapidated and requires demolition and new construction. The appellate Court set aside the order of the prescribed authority on the ground that the provisions of Rule 17 (ii) (iii) and (iv) have not been complied with. Learned counsel for the petitioner has urged that the requirement of Rules 17 (ii) (iii) and (iv) have been complied with the petitioner and the findings recorded by the lower appellate Court to the contrary are manifestly erroneous. Requirement of Rule 17 (ii) is as follows : "that a proper estimate of expenditure over the proposed demolition and new construction has been prepared. " The lower appellate Court has rejected the estimate of expenditure given by the petitioner on the ground that in the estimate there is no estimate for the proposed demolition. In my opinion, this finding is manifestly erroneous. In paragraph 7 of the affidavit of the petitioner filed before the prescribed authority (this affidavit has been annexed as Annexure 'i' to the petition) it has been categorically stated that proper estimate of expenditure over the pro posed demolition and new construction has been prepared. This estimate of expenditure was filed before the prescribed authority. Costs of construction of holding was included. The fact that this estimate included the costs of proposed demolition and new construction was not denied by the respondent No. 2. Obviously, therefore, the costs of construction would include the costs of demolition as well as the construction. There is another aspect of this case. Both the prescribed authority as well as lower appellate Court have recorded a finding that the major portion of the building in dispute has already been destroyed. Only one room remains which had also developed cracks. In the circumstances, it was not a case where any major expenditure was to be covered in the demolition of the said construction. In the circumstances, it was not necessary for the petitioner to have given a separate estimate for the expenditure to be incurred on the pro posed demolition. Rule 17 (ii) cannot be read so technically. As I have already stated the proposed estimate of expenditure of construction of building would naturally include the costs of the proposed demolition. In these circums tances, the requirement of Rule 17 (ii) was fully complied with and the finding of the appellate Court is manifestly erroneous on this ground. The next requirement of Rule 17 (iii) is that a plan has been duly prepar ed and conforms to the bye- laws and regulations of the local authority, or other statutory authorities under law in that behalf for the time being in force". In paragraph 8 of Annexure 'i' to the petition mentioned above, it has been categorically stated by the petitioner that the plan has been duly prepared in respect of the proposed new construction and it conforms to the bye-laws and regulations of the Municipal Board, Kaimganj. Also in paragraph 2 of the petition it has been categorically stated that the plan which was filed was a duly sanctioned plan signed by the Executive Engineer, Municipal Board and a certified copy of the order passed by the Executive Officer, Municipal was also filed. These averments have not been denied, neither in the counter affidavit before the prescribed authority nor in the counter affidavit before this Court. The appellate Court has acted illegally and with material irregularity in discar ding the certified copy of the sanctioned plan given by the Executive Officer of the Municipal Board. The finding, therefore, in this regard recorded by the lower appellate Court is manifestly erroneous. There was complete compliance of Rule 17 (iii) of the Rules framed under the Act. The last requirement, namely, Rule 17 (iv) is that the landlord has finan cial capacity for the proposed demolition and new construction. In Annexure T to the petition, in paragraph 9 it has been categorically stated that the petiti oner has financial capacity for the proposed demolition and new construction. This fact was not denied by the respondent No. 2. On the other hand in para graph 6 of the affidavit filed by the respondent No. 2 before the prescribed authority which is Annexure 'v to the petition, the own case of the respondent No. 2 was that the petitioner is a member of rich and millionaire joint family possessing many buildings, comprising shops and residential accommodation much beyond the need of her family members and as such she does not require this building for any genuine need. In the circumstances, from the record before the prescribed authority it is obvious that the respondent No. 2 did not deny the capacity of the petitioner to make the proposed construction. The approach of the lower appellate Court in this regard is clearly erroneous. The lower appellate Court has held that this provision is not complied with on the ground that the petitioner has not proved her financial means and that the mere assertion that she has means is not sufficient. In Smt. Kailash Devi v. III Addl. District Judge and others, ( 1978 Alld. Rent Cases 392) it has been held by the Court that it was not necessary for the compliance of Rule 17 (iv) that the landlord should also prove prossession of hard-cash. Great stress was given on the word 'capacity'. If the landlord had the capacity to make reconstruction that was to be found sufficient compliance of sub-rule (iv ). Similarly in Chaudhary Mohd. v. Prescribed Authority, ( 1979 Alld. Rent Cases 60) this Court further held that Rule 17 (iv) only requires that the landlord should prove the capacity to make reconstruction. The approach, therefore, of the lower appellate Court in this regard is manifestly erroneous. There was no denial by the respondent No. 2 that the petitioner had capacity to make reconstruction. In view of the above, there was compliance of Rule (iv) also. In the result, the petition is allowed. The judgment of the lower appel late Court dated 30th March, 1979 is quashed and that of the prescribed authority restored. In the circumstances of the case parties are directed to bear their own costs. Learned counsel for the respondent No. 2 prayed for time to vacate the premises. I grant respondent No. 2 three months time to vacate the premises. .