BITOLA DEVI Vs. DIST. JUDGE, MIRZAPUR

JUDGEMENT

(1.) THIS is tenant's writ arising out of proceedings initiated by landlord for release of the tenanted accommodation in dispute under Section 21(1)(b) of U.P. Act No. 13 of 1972 on the ground that the building was in a dilapidated condition and required reconstruction after demolition. Rent of the disputed building is Rs. 40/- per month. The premises in dispute is a two-room accommodation. Bhairo Prasad was the landlord who died during proceedings before the courts below and was substituted by his widow Srimati Rampati Devi, who is respondent No. 2, in the writ petition. Kalka Prasad was tenant, who also died during pendency of the proceedings before the courts below and was survived by the three petitioners. Petitioner No. 3 also died during pendency of the writ petition and has been substituted by his legal representatives. Tenant Kalka Prasad filed an application against landlord Bairo Prasad under Section 28 of U.P. Act No. 13 of 1972 for repair of the tenanted house. Said applications was registered as Misc. Case No. 129 of 1981 on the file of prescribed Authority Mirzapur. Landlord Bairo Prasad filed release application under Section 2(1)(b) of the Act against Kalka Prasad (giving rise to the instant writ petition) before the same Prescribed Authority i.e. Prescribed Authority, Mirzapur, which was registered as Misc. Case No. 164 of 1981. Both the application were decided on the same date i.e. 13-1-1983 by the same Presiding Officer Sri S.N. Pandey. It is unfortunate that the Prescribed authority did not consolidate both the cases. In the facts and circumstances of the case it was essential for the Prescribed Authority to consolidate both the cases. Prescribed Authority held that the house in dispute was not in a dilapidated condition and it required only certain repairs and also held that landlord had made certain interpolations in the Amin's report. Prescribed Authority also held that Nagar Palika had given a notice to the landlord on 3.3.1981 to the effect that the house in dispute was likely to fall any moment, hence, either he should demolish it or after a week Nagar Palika would demolish the same. It was, in fact, neither demolished by the Nagar Palika, nor any step towards the said direction was even taken by Nagar Palika. Prescribed Authority ultimately by order dated 13.1.1983 dismissed the application under Section 21(1)(b) of the Act. Against the said judgment and order landlord filed Miscellaneous Appeal No. 2 of 1983. 3rd A.D.J. Mirzapur through judgment and order dated 11-1-1988 allowed the appeal, set aside the judgment and order passed by the Prescribed Authority and allowed he release application. Through the said order the tenant was directed to vacate the premises in dispute by 31.3.1988 and deliver possession of the same to the landlord. It was further directed that in case of default, landlord would be entitled to get the tenant evicted through court. The said judgment and order of the Appellate Court is under challenge in this writ petition. Copy of the judgment dated 11-1-1988 was not available in the file, hence, learned counsel for the tenant-petitioner was directed to provide a duplicate copy thereof. The needful has been done.

(2.) NO one appeared on behalf of the landlady respondent No. 2 Shrimati Rampati Devi. On the substitution application for seeking substitution of the L.Rs. of petitioner No. 3, notices were again issued to the landlady respondent No. 3 in the year 2003. The service was sufficient under Chapter VIII Rule 12 of the High Court Rules, still no one appeared on behalf of the landlady.

(3.) BOTH the courts below differed on the condition of the building in dispute. Prescribed Authority held that it was not dilapidated while Appellate Court held otherwise. I do not propose to decide in this writ petition as to whether judgment and order passed by the Appellate Court reversing the findings of the Prescribed Authority suffers from any such errors, which may be rectified in exercise of writ jurisdiction. Appellate Court clearly committed an error of law in not providing a time schedule for reconstruction. In respect of orders for release on the ground of dilapidated condition of the building under Section 21(1)(b) of the Act read with Section 2 of the Act, there is lacuna in the Act that it does not fasten any liability on the landlord to reconstruct. Under Section 24(2) of the Act it is provided that after demolition and reconstruction outsted tenant may apply to the District Magistrate for allotment of the newly constructed building. However, if a landlord having got no bona fide need, does not reconstruct the building after getting it released under Section 21(1)(b) of the Act, then there is no provision under the Act under which he may be compelled to do so. The lacuna is to be filled up by the Courts. Unfortunately, no one has appeared on behalf of landlord respondent No. 2. In case landlady was represented and in case I had agreed with the findings of the lower appellate court in respect of dilapidated condition of the building in dispute, then I would have myself fixed a time schedule for reconstruction of the building. However, in the absence of landlady that cannot be done.