V N MISRA Vs. DISTRICT JUDGE LUCKNOW

JUDGEMENT

(1.) THIS petition relates to the accommodation on the first floor of house No. 67 Mavaiya Ganeshganj, Lucknow. Opposite party No. 3 filed an application for allotment of the said accommodation. The landlord on the other hand disputed that the accommodation had fallen vacant and also prayed that as it was in a dilapidated condition, it would require demolition and re -construction, hence it should be released to him. The Inspector in his report, dated 17th December, 1974 had pointed out that the accommodation in question was occupied by Budh Ram Agarwal as tenant who had shifted to his own house in Mohalla Sheopuri. The vacancy was, therefore, ordered to be notified on 23rd November, 1974. The landlord filed an objection on 30th December, 1974 contending that the whole house was in the tenancy of Gopi Krishna Agarwal and had not been vacated, hence it was not available for allotment. He also pointed out that the back portion of the said house was in a very rickety condition and, therefore, he wanted it to be demolished and re -constructed for which he asserted to have sufficient means at his disposal. The opposite party No. 3 contended that Gopi Krishna Agarwal had never lived in the said house and was not its tenant and that one Mahesh Dutt Misra was occupying the ground floor accommodation. Certain evidence was sought to be adduced before the Prescribed Authority with respect to the condition of the building on the first floor. According to the report of Sri Krimani, a retired Executive Engineer filed by the present opposite party No. 3 the condition of the said accommodation was satisfactory and it merely needed repairs. The Prescribed Authority rejected the application of the landlord for release of the said accommodation and allotted the same to the opposite party No. 3. Aggrieved, the landlord filed two revision petitions in the Court of District Judge, Lucknow. The revision petition No. 338 of 1976 was directed against the order of allotment while revision petition No. 339 of 1976 was filed against the order of rejection of release application. Both these revision petitions were decided by the judgment by the learned District Judge. While dismissing both the revision petitions the learned District Judge modified the order of the ADM (Civil Supplies) to the extent that the two dilapidated rooms at the back with the open roof in their front shall stand released in favour of the landlord and the allotment order shall govern only the remaining part of the first floor including the kitchen on the back side. During the pendency of the revision petition the landlord had died and his heirs were brought on the record. They have now filed the instant writ petition under Article 226 of the Constitution for quashing of the order of the learned District Judge as also the order of allotment of the said accommodation in favour of the opposite party No. 3 and the order whereby the release application was rejected. The petition has been opposed and a counter affidavit has been filed. Rejoinder affidavit was filed thereafter and the supplementary affidavit was also filed including thereto a copy of the Inspection note of the learned District Judge, dated 4th July, 1978. It seems that the learned District Judge had inspected the house in question in the presence of the Counsel for the parties and had made a note of his inspection, dated 4th July, 1978.

(2.) THE learned District Judge has held that as no plan as required by Rule 17(iii) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 had been got prepared by the landlord conforming to the building regulations, one of the conditions for the release Under Rule 17 had not been fulfilled, hence the release of the back portion on that ground could not be considered. The learned District Judge then proceeded to observe:

(3.) IN order to appreciate the rival contentions it would be appropriate to refer to Section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. under Sub -section (1) of Section 16 the District Magistrate may order release of the whole or any part of a building in favour of the landlord which has fallen vacant or is about to fall vacant. Sub -section (2) of Section 16 requires that no release Under Clause (b) of Sub -section (1) shall be made unless the District Magistrate is satisfied that the building or any part thereof is in a dilapidated condition and is required for purposes of demolition and new construction. Para 3 of Rule 13 of the U.P. Urban Buildings Regulation of Letting, Rent and Eviction) Rules provides that where the application referred to in Sub -rule (1) is made on the ground that the building is required for demolition and new construction the procedure laid down in Rule 17 shall mutatis mutandis be followed. Now Rule 17 says that before allowing an application for release of a building Under Section 21(1)(b) on the ground that it is required for purposes of demolition and new construction, the prescribed authority shall satisfy itself -