PRAHLAD CHAND Vs. DINESH KUMAR GUPTA

JUDGEMENT

(1.) A. K. Yog, J. Heard Sri Rajesh Tandon, Senior Advocate, assisted by Sri Som Nath Mishra, Advocate, on behalf of the petitioner-applicant on the review application No. 94115 of 2001. Sri Ravi Kiran Jain, Senior Advocate, assisted by Sri L. M. Singh, Advocate, on behalf of the contesting landlord opposite party (respondent in the petition ).

(2.) SRI Rajesh Tandon, senior Advocate, has made following 4-submissions - (i) The writ petition was heard on 1-11-2001 and judgment was dictated in the open Court. Whatever arguments were raised the same find place in the said judgment apart from the ground taken in the memorandum of the review petition. The submission of SRI Rajesh Tandon, Senior Advocate, is that he was out of station on the date when the petition was taken up for hearing. Another Counsel, appearing along with him Mr. Ashok SRIvastava had appeared and argued the case. The grievance raised in the review petition is that said learned Counsel SRI Ashok SRIvastava could not make certain submissions. It may be noted that a Counsel had argued the case. It is irrelevant that other Counsel appearing for the same party was not available. Moreover the judgment once having been dictated and signed, question of granting indulgence for further hearing in the same matter did not arise. (ii) The learned Counsel for the tenant applicant, SRI Rajesh Tandon, Senior Advocate argued that under Rule 17 (1) of the Rules framed under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U. P. Act No. XIII of 1972 (for short called 'the Act') there ought to have been a finding that accommodation in question required demolition and it was not enough that the landlord required the building for demolition. The learned Counsel for the tenant applicant placed reliance on the decision in the case of Abdul Hai v. IIIrd Additional District Judge, Basti and others, 2001 (2) JCLR 858 (All); 2001 (44) ALR 154 para 16. The aforesaid decision is clearly distinguishable since the Court below specifically applied its mind to the essential ingredients of the Section 21 (1) (b) of the Act and, after considering relevant material on record, came to the conclusion that accommodation in question required demolition. The aforesaid argument of the learned Counsel is thus misplaced. In fact no such ground was even taken in the writ petition, nor pressed and thus it does not provide good ground for reviewing my judgment. (iii) Learned Counsel for the tenant-applicant then referred to clause (iii) of Rule 17 which reads - "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. . . . . . . . . . . . . " and argued that there must be a sanctioned plan proposed construction. The argument is misconceived. In my judgment and order dated 1-11-2001 dismissing the petition, requirement of Rule 17, to the extent argument was made is already considered. The view taken in the judgment is based upon the Division Bench decision rendered in the case of Binda Prasad v. III Additional District Judge, Faizabad and others, 1984 (2) ARC page 306 (Para 9 ). For ready reference relevant portion of the said para is quoted - ". . . . . . . . . . . . . We are, however, not inclined to accept the view taken by the learned Single Judge. Of course, where only a plan has been prepared, but it is still to be sanctioned by the competent authority, then, no doubt, the Prescribed Authority must examine whether the plan conforms to the building bye-laws or regulations, has itself sanctioned the plan, it is not open to the Prescribed Authority or to the Appellate Court to sit in judgment over the decision of the said competent authority. The requirement of Rule 17, in this behalf, has to be reasonably interpreted and it cannot be so interpreted as to confer a part of appellate jurisdiction on the Prescribed Authority to sit in judgment over the decision of the local body or other competent authority on which the jurisdiction to examine the building plans has been conferred by the legislature. In view of learned Single Judge in Ram Aatar (supra) on this point is overruled. " The learned Counsel for the tenant-applicant does not dispute that there is any other contrary judgment on the point. SRI Tandon places reliance upon the case of Kandaswamy v. Board of Management, H. S. I. Said Mosque, AIR 2001 Supreme Court 1269 (Para 12 ). The aforesaid decision is based upon interpretation of certain provisions of Karnataka Rent Control Act (1961) wherein Section 21 (1) of the Act, in clear terms, required that for construction of building there was a approved plan or the competent authority had permitted the landlord to build on the land. The expression used in Rule 17 of the Rules framed under the Act is clearly distinguishable : (iv) The learned Counsel for the tenant-applicant in the last submitted that this Court is bound to give direction to the landlord for reconstructing the building within a specified time and thereafter let it out to the tenant applicant. In support of his aforesaid submission, reliance has been placed on the following decisions - (A) 1997 (2) Allahabad Rent Cases 173 (pr. 9) State of U. P. v. Additional District Judge, Special Judge, E. C. Act Dehradun and others, (B) AIR 1991 SC 455 (pr. 4) Masjid Kacha Tank, Nahan v. Tuffail Mohammed. (C) 2000 (1) Allahabad Rent Cases 589 (pr. 12), Manendra Kumar Gupta and others v. Special Judge Allahabad and others.

(3.) IN the case of Masjid Kacha Tank (supra) the Supreme Court directed - ". . . . . . . . . . . . . We however direct that landlord-appellant shall take effective steps for completing reconstruction of the building within a reasonable period i. e. six months from the date the tenant- respondent vacates the building. The tenant is, however, given time till 21st March, 1991 to vacate the premises. We further direct the landlord appellant to commence the construction work, if possible, the portion occupied by the tenant, immediately after his vacating the said premises. On completion of the construction the landlord will officer the said premises previously occupied by the tenant-respondent to occupy at the prevalent. . . . . . . . . . . . . " (Emphasis laid down by me)