SUNDARI DEVI Vs. GANGA RAM

JUDGEMENT

(1.) THIS is landlords' writ petition filed against the judgment of the District Judge, Kanpur dated 7.1.1977 allowing the appeal of the tenants. Smt. Sundari Devi and five others, who are the petitioners in the present writ petition, are the owners and landlords of house no. 109/2, Nehru Nagar, Kanpur. According to the facts stated in the application filed under section 21(1)(a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No XIII of 1972), the entire plot is a triangular plot 62' 6" on the road side and 100' on the other side. The hypo tenuse is about 100'. There were five rooms and three sheds apart from two Khaprails and three rooms covered by tin-sheds. An application under section 21(1) (b) of U. P. Act XIII of 1972 was filed by the petitioners for release of the premises against respondents no. 1 and 2. The respondents no. 1 and 2 were the tenants of a portion (consisting of one room, one tiled shed and an open court-yard) on the groud floor of the said house no. 109/2, Nehru Nagar at the monthly rent of Rs,87.50 P. Another application under the same provisions had been filed against Suraj Prasad. He was also a. tenant of an other room situated in the same building. The petitioners alleged that the premises was required by them for their own occupation after demolition and re-oonstruction. In paragragh 6 of the said application the petitioners alleged that the entire house was in a dilapidated and dangerous condition and was required to be re-constructed. The application was resisted by the respondents no. 1 and 2 on the ground that the building was in a sound condition and was not required to be demo lished. The said respondents also alleged that three other persons, who were occupying three shops in the same building, had been forced to vacate their portions after roofs of these portions were demolished by the landlords. The respondents no. 1 and 2 further asserted that the petitioners had a newly constructed house in Nehru Nagar and that the premises in dispute was not required by them for their residence. Before the Prescribed Authority, the parties filed affidavits and adduced evidence. The petitioners also filed an affidavit of one Murtaza Husain about the condition of the building. Murtaza Husain reported that the building was about 50 years old and the most portions of the said house had already fallen down. Sri Amba Sahai, who was an Advocate, practising at Kanpur had been appointed as the Commissioner for local inspection. He made the inspe ction of the premises and thereafter submitted a report. The Prescribed Authority allowed the application holding that the pre mises was in a dilapidated condition. In arriving at this finding, the Prescribed Authority relied upon the evidence of Murtaza Husain Engineer and also upon the report of the Commissioner. Against the judgment of the Prescribed Authority, the respondents no. 1 and 2 preferred an appeal before the District Judge, Kanpur, who was the appellate authority meant for the purpose of deciding the appeals filed under section 22 of the aforesaid Act. The appellate authority allowed the appeal, set aside the judgment of the Prescribed Autho rity and rejected the application filed by the petitioners. Being aggrieved, the petitioners filed the present writ petition. Before discussing the points urged, it appears appropriate to make it clear that the application filed by the petitioners had been pressed under clause (b) of sub-section (1) of Section 21 of the Act before me. Although, the relief claimed in the application filed under section 21 was both under clauses (a) and (b) of this Act, the Prescribed Authority granted the prayer under clause (b) of sub-section (1) of Section 21 of the Act. In the appsal the learned Dis trict Judge also found that the parties had confined the scope of the applica tion to clause (b) of sub-section (1) of Section 21 only. Even on merits, the appellate authority held that the petitioners had not been able to establish their requirements. The finding of the appellate authority given on this question has not been challenged before me in this writ petition. The arguments were confined to clause (b) of sub-section (1) of Section 21. Section 21 deals with the proceedings for release of building. The relevant portion of the aforesaid provision is quoted below: "The Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of following grounds exists, namely- (a)................................. (b) That the building is in a dilapidated condition and is required for purposes of demolition and new construction.'' In an application filed under section 21(b) a landlord is required to establish (1) that the building is in a dilapidated condition, and (2) is required for purposes of demolition and new construction. Rule 17 of the Rules framed under the Act lays down the various requirements, which the landlord has to satisfy for succeeding an application filed under clause (b) of sub-section (1) of Section 21. Briefly stated, the requirements are these: (i) That the building requires demolition ; (ii) That a proper estimate of expenditure over the -proposed demoli tion and new construction has been prepared; (iii) That a plan has been duly prepared ; (iv) That the landlord has the financial capacity for the proposed demo lition and new construction. Reading section 21(1) (b) along with Rule 17 of the Rules, it is clear that the building from which the eviction of a tenant is sought must be in a dilapida ted condition and that the same is required by the landlord for demolition and new construction. He cannot succeed unless the requirements of Rule 17 have also been complied with. In the instant case, the appellate authority considered the evidence of the parties and found that the premises let out to respondents no. 1 and 2 was not in a dilapidated condition and that an order under clause (b) of sub-section (1) of Section 21 could not be passed in respect of it. The petitioners challenged the finding of the appellate authority and contended that the said finding was vitiated. It was submitted that as the Advocate-Commissioner's report had been wrongly accepted and further that the affidavit of Sri Murtaza Husain Engineer had been discarded on a wrong basis, the finding recorded against the petitioners was vitiated by an error of law. In this connection, learned counsel also urged that the appellate authority erred in holding that the affida vit of Murtaza Husain was liable to be ignored as the same did not give the necessary data on which the report was based. I do not find any merit in the submission made by the 'earned counsel. The opinion of witnesses possessing expert opinion is admissible whenever the subject-matter of enquiry is such that inexperienced persons are not likely to prove capable of forming a correct judgment upon it. It is based on the principle that as Judges are not properly equipped to draw the proper inferences from the facts stated by witnesses, it is appropriate that the opinion of the expert was taken. It may, however, be pointed out that since the party had invoked the decision of a judicial tribunal and not a pronouncement by an expert, it is the duty of a Court to satisfy itself about the facts stated by an expert. A Court cannot blindly accept a report. It is the duty of an expert to furnish the Judge the necessary criteria for testing the accuracy of his con the Supreme Court has taken to set aside the finding of the the learned counsel for the elusion so as to enable the Judge to form his own independent judgment by application of the criteria to the facts proved in evidence. The appellate authority found that the affidavit of Murtaza Husain since did give the necessary details, the same could not be accepted. The appellate authority also observed that in the affidavit no material was placed before the Court from which the Court could form its independent opinion about the condition of the building. In my view, the appellate authority did not commit any error of law in dis carding the affidavit of Murtaza Husain on the above ground. It would, however, be found that the appellate authority placed reliance on the report of the Advocate- Commissioner and held that the building was in a good condition. The finding of the appellate authority is the finding of fact being based on inference drawn from the evidence. It is not possible to interfere with the said finding on the ground suggested by the learned counsel. As, in fact, as already pointed out, criticism of the finding of the appellate authority is unjustified. In Nagendra Nath Bora v. Commissioner Hills, Division A. I. R. 1958 S. C. 398 it was observed that a writ or order of certiorari could be issued by the High Court only if there was an error of law apparent on the face of the record and no error of fact. If in appreciation of documentary evidence of affidavit, error in drawing inferences or omission to draw inferences occur, the High Court had no juris diction to correct the same. In other words, those are errors which a Court sitting as a Court of appeal only could examine and, if necessary, correct. In Babhutmal Ralchand Oswal v. Laxmi R. Tarte A. I. R. 1976 S. C. 1297 the same view. Accordingly, I am not prepared appellate authority on the ground suggested by petitioners. Sri S. P. Gupta, counsel appearing for the petitioners, however next con tended that the word 'building' used in clause (b) of sub-section (1) of section 21 need not be interpreted as meaning 'building under tenancy; He urged that even if the building let out to a tenant is not in a dilapidated condition, the landlord could be entitled to get release under clause (b) of sub-section (1) of section 21 if he was to establish that a larger portion of the building of which an apartment let out to the tenant was in a dilapidated condition. I am not able to find substance in the submission of the learned counsel for the petitioners. Clause (V) will have to be read along with main sub-section (1) of Section 21. Reading these two provisions together, it is clear that the 'building' spoken of in clause (b) relates to the 'building under tenancy.' A release order under clauses (a) and (b) is made in favour of the landlord in res pect of building let out to a tenant. The word 'the' used in clause (b) refers to 'the building under tenancy mentioned in sub- section (1) of Section 21. It is not clear that clause (b) refers to a promises, which may not have been let out to the tenant. In Mohd. Shafi v. VII Additional District and Sessions Judge, Allahabad and others, 1977 (3) A.L.R. 170 = A.I.R. 1977 S.C. 836 the Supreme Court was called upon to consider the expression of the word building used in Explanation iv of sub-section (I) of Section 21 of the Act. The Supreme Court observed ; "The word "building" is used thrice in Explanation iv and it is clear from the context in which it occurs that it is not intended to be used in a popular sense so as to mean the entire superstructure raised on the ground. The first time that the word "building" is used is in the expre ssion 'the building under tenancy' and it is obvious that it is 'the building of houses. Hence, such a In fact, the regulation made public and. as such it is not under tenancy', which is intended to be referred when the word "building" is used towards the end of Explanation. It is in respect of 'the building under tenancy' that a conclusive presumption is raised that it is bona fide required by the landlord. Now, 'the building under tenancy' cannot be the superstructure because what is contemplated by the Explanation is that 'the building under tenancy' must be a part of a building......... In my opinion, the word 'building' used in clause (b) of sub-section (1) of Section 21 should also be interpreted in the same sense'-namely, that it means accommodation, which is the subject matter of tenancy. Sri S. P. Gupta counsel for the petitioners, contended that making of an interpretation of clause (b) to the above effect will seriously jeopardise a right of the landlord. He urged that since a landlord has a fundamental right guaran teed by the Constitution to hold and posses property, it is embodied therein that he can evict a tenant and can demolish it whenever he feels like doing it. In this connection he also urged that this Court should place a construction of clause (b) of sub-section (1) of Section 21, which may not make it ultra vires the Constitution. The submission is devoid of substance. It is to be noted that under Article 19(1) (f) every citizen has a right to acquire, hold and dispose of property. But under clause (5) of the Consti tution such a right is capable of being regulated. Such a provision is obviously necessary in public interest due to the shortage restriction cannot be held to be unreasonable, by the Act is necessary in the interest of general void of the Constitution. Section 21(1) (b) does not confer a right on a landlord to evict a tenant from accommodation belonging to him, which is required by him for the pur poses of demolishing it with a view to put a new building. It lays down a condition that the premises are in a dilapidated condition. If the Legislature intended to provide a right to a landlord to get the premises from a tenant for the purposes of reconstruction, the same would have been differently enacted. Sri S. P. Gupta cited certain cases of the Supreme Court wherein the Supreme Court had found that it was not necessary for the landlord to establish that the condition of the building was such that it required demolition. It would, however, be noticed that those were the cases where the provisions under which applications were filed, were different. In Panchamal v. Sheonoy (1970)1 S.C.W.R. 406 the Supreme Court, held that it was not necessary for the landlord to establish that the condition of the building was such that required demolition before claiming eviction under section 21(1) clause (j) of Mysore Rent Control Act. The said case is not helpful to us as clause (b) of sub-section (i) of Section 21 is different than the provision, which was interpreted by the Supreme Court in the said case. In our Act, the bona fides.of the landlord to demolish the construction was not required to be considered. The condition is that the building must be in a dilapidated condition. In a case where a landlord has been conferred the right to take possession of the building when he bona fide requires the same for the purposes of demolition and new construction, it is not necessary for him to show that it is in a dilapidated condition. What must be shown in such a case is that the premises is reasonably and bona fide requi red by the landlord for re-construction. However, the law laid down in this case cannot be applied in our Act. It is not correct to say that as one of the objects of the Act is to encourage the making of new constructions, therefore, the interpretation placed on clause (b) of sub-section (1) of section 21 should be that which achieves the said purpose. The purpose of the Act is to provide for the regulation of letting and eviction of tenant from certain clauses of building situated in urban areas. The learned counsel is not right in his submission that the construction made above is narrow and that the requirement of the time is that clause (b) of sub-section (1) of Section 21 should be widely construed so that the scarcity of the accommodation could be met with. The language employed in clause (b) is not ambiguous and as such does not leave any scope for accepting the interpretation placed by the learned counsel for the petitioners. I consider it proper to note that I have not been called upon in this case to decide a controversy where a portion of the building which is not dilapidated, is so situated that the re-construction of the remaining building is not possible without demolishing the tenanted portion. What I have said above, I find that the petitioners having failed to establish that the building was in a dilapidated condition, the application under clause (b) of sub-section (L) of Section 21 was rightly rejected. For these reasons, the writ petition fails and is dismissed with costs to respondents no. 1 and 2.