CHANDO DEVI Vs. IIIRD ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) RELEASE of the building, comprising of 400 sq. feet constructed area and 6100 sq. feet open space was sought both under Section 21(1)(a) and (b) of U.P. Act XIII of 1972 reconstruction as it was dilapidated. It was found by prescribed authority that petitioner had no house of his own in city of Mathura, was residing as licensee with another person who being of another sub-caste could not be related to him, his father had some agricultural land and plot but they were beyond Municipal limits, therefore, his need was bonafide. But he did not release the constructed area as vacant land which was appurtenant to the building was surplus within meaning of sub-section (2) of Section 21 of the Act and the requirement of opposite party who wanted to construct new house could be amply satisfied by it. He did not find any merit in claim of opposite party that the building was dilapidated. He did not place any reliance on affidavit presumably because they were oath against oath. It was also observed that two of the affidavits filed on behalf of opposite party were of such persons who supported petitioner. The report of Engineer was rejected as boundary given in it did not tally with boundary disclosed in the application for release. No reliance was placed on Commissioner's report probably because objection was raised that it was not made in presence of parties. Therefore, petitioner was held to have failed to discharge the burden that building was dilapidated which in fact needed repair only. In the two appeals filed by both parties the opposite party did not press his claim under Section 21(1)(a) obviously because after release of surplus land need under Section 21(1)(a) stood satisfied, and provisions of the sub-section (a) could not be successfully pressed for release of the building. The Appellate Authority, however, allowed the appeal as it accepted claim of opposite party that building was dilapidated within meaning of sub-section (1)(b) of Section 21. It was held that it was not denied that building was very old. Therefore, it had legally and technically outlived its use. Reliance was placed mainly on Commissioner's report even though it was found to be incorrect because he was a member of the bar and it was not possible to believe that he would not have depicted correct facts. He agreed that report of Engineer was wrong but according to him the pith and substance of report left no room for doubt that building was dilapidated. It was held that opposite party had inducted sufficient material on record to show that entire building had fallen in rains and was in very dilapidated condition.

(2.) DILAPIDATED has not been defined in the Act. It has, therefore, to be understood in its ordinary sense. In Webster Third International Dictionary it is defined as. 'decayed', deteriorated', injured', or fallen into partial ruins specially because of neglect or misuse'. In Little Oxford Dictionary 'dilapidation' is defined as 'state of bad repair' falling into decay' and the word dilapidated as, 'in decay'. In Black's Legal Dictionary dilapidation explained thus. 'The terms is also used in the law of landlord and tenant, to signify the neglect of necessary repairs to a building or any part of it. Therefore, range or variation is quite wide. From neglect of repair to decay or necessity to pull down are all included. In what sense it has been used in the Act ? To find out it there is any indication in the Act itself as to in which sense Legislature has used the milder one, that is even for repair, or stronger one, in state of ruins there can be no better guide than to examine the context in which it has been used in sub-section itself which reads as under :-

(3.) IT was vehemently argued by learned counsel for opposite party that finding recorded by Appellate Authority that building was dilapidated was a finding of fact which could not be interfered by this Court. Argued learned counsel, that sufficiency of evidence of finding not being detail are not grounds on which writ should be issued. According to him the Appellate Authority right placed reliance on Commissioner's report which was not only made in presence of parties but was supported by Engineer's report. Submissions as a matter of law is both sound and unimpeachable but examined on facts, it fails to ground. It is equally well established that a finding based either on misapprehension of fact or law, or on irrelevant material or on incorrect report which is the foundation of finding is vitiated and is liable to be quashed. the finding recorded by Appellate Authority suffers from each of these infirmities. Against Commissioner's report petitioner had filed objection before Prescribed Authority. It was claimed that it was not only incorrect but premises were inspected without intimation. And mention in the report of petitioner's presence was wrong. No orders were passed on it. May be because Prescribed Authority did not place any reliance on it. The Appellate Authority found that it did not depict the boundary etc. correctly yet made it the basis of his order because it was by member of the bar. Once it was found that report was incorrect it should have either been ignored or fresh report should have been obtained. Error was repeated while considering Engineers report. It again was found inaccurate by the Appellate Authority attempted to 'bring out pith and substance' out of it. Apart from these factual errors and reliance on irrelevant material he was under misapprehension about the import of word dilapidated.