SUKHDEI Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Manas Bhargava, learned counsel for the petitioner and Sri Ashok Kumar Srivastava and Sri Anil Kumar Singh, advocates for the contesting respondents.

(2.) THE instant writ petition was admitted on 8.9.1995. Counter and rejoinder-affidavits have been exchanged. Supplementary-affidavit on behalf of the respondent No. 4 as well as on behalf of the respondent No. 7 were filed on 15.9.2008 and 24.3.2009 respectively to which supplementary counter-affidavits have been filed by the petitioner. An impleadment application was filed on behalf of Shitala Prasad, son of Sri Mathura Prasad and Parvati wife of Gurcharan but the learned counsel appearing for the applicant made statement before the Court that he will challenge the order of the appellate court in a separate writ petition and, therefore, was rejected as not pressed on 5.5.1998.

(3.) THE contention of the learned counsel for the petitioners is that at the time when the accommodation in question was declared as malin basti, an objection was filed by the landlord stating therein unequivocally that the building is in a perfect condition and can by no stretch of imagination termed as malin basti. Thus, learned counsel submits that the landlord cannot blow hot and cold simultaneously. THE next point canvassed on behalf of the petitioners is that complete compliance of Rule 17 of the Rules framed under the Act has not been made. According to the report of the Engineer in the year 1989 filed by the landlord, assessment of expenditure has been given which would be incurred in reconstruction as Rs. 1,63,000 and odd which is many folds higher today and there is nothing on record to establish that the landlords have means to incur that expenditure. Besides, the plan has not yet been sanctioned. No finding has been recorded on the basis of the report of Architect that whether the building requires demolition for appropriate estimate of expenditure and how much time would it required for demolition. THE emphasis on compliance of Rule 17 of the Rules by the learned counsel for the petitioners does not appear to be taken into consideration at all by the lower appellate court. Learned counsel for the contesting respondents has disputed each and every arguments of the counsel for the petitioners and submits that the building is absolutely in dilapidated condition which may fall down at any moment. Proceedings were initiated under Section 133, Cr. P.C. and dropped subsequently, therefore, the argument on behalf of the petitioners is that the building is in perfect condition. He further submits that he had never filed any objection to the effect that the building in question is in perfect condition before the Nagar Mahapalika when it was declared as malin basti. THE said application was never brought on record either before the courts below or in the present writ petition, therefore, there is no option but to agree with the submission made by the counsel for the landlord-respondents.