Rafeeq Ahmad vs Mohd. Farooq And 9 Ors.
2018 Latest Caselaw 76 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
										AFR
 

 
Court No. - 26
 
Case :- WRIT - A No. - 38169 of 2016
 
Petitioner :- Rafeeq Ahmad
 
Respondent :- Mohd. Farooq And 9 Ors.
 
Counsel for Petitioner :- Shreya Gupta,Ravi Anand Agarwal
 
Counsel for Respondent :- Manish Tandon
 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

1. This petition has been filed by petitioner tenant praying for quashing of the judgment and order dated 18.07.2016 passed by Additional District Judge, Court No. 11, Kanpur Nagar in Rent Appeal No. 26 of 2015 by which he has rejected the appeal of petitioner-tenant against judgment and order dated 13.02.2016 and also the order passed by Prescribed Authority, Court of Additional Chief Metropolitan Magistrate, Kanpur Nagar dated 13.02.2015.

2. Ms. Shreya Gupta arguing on behalf of the petitioner tenant has limited her grounds of challenge to two. Firstly,  that the Prescribed Authority while allowing a release application under section 21(1) (b) of the U.P. Act No. 13 of 1972 ought to have seen whether the map that was submitted by landlord - respondent was in accordance with bye-laws of the local authority. Also, she has argued that under section 24 (2) of the Act a right of re-entry has been provided to tenant in case release application under section 21(1) (b) is allowed. No such right of re-entry of the tenant has been secured by the learned Courts below in the orders impugned.

3. Ms. Shreya Gupta has referred to various paragraphs of the release application and the specific denial in the written statement filed by the tenant petitioner with regard to the plan being submitted by the landlord-respondent in accordance with the bye-laws of the local authority. She has referred to grounds in memo of appeal wherein it has been alleged by the petitioner-tenant that the plan submitted by landlord-respondent  is not in accordance with bye-laws of the local authority.

4. I have also been taken through the findings recorded by the Prescribed Authority in this regard more specifically the internal page - 50 of the order of the Prescribed Authority.  The allegation of tenant petitioner before the Prescribed Authority was that no sanctioned plan had been submitted for reconstruction of the torn down building.  The Prescribed Authority has only referred that there is a duly prepared plan in accordance with the bye-laws and it is not necessary that the said plan should also have been sanctioned by the local authority.

5. The learned counsel for the petitioner submits that the Appellate Authority also has only summarily dealt with this argument raised regarding the plan being submitted for reconstruction by the landlord-respondent being not in accordance with the bye-laws without actually examining the plan and bye-laws.

6. Ms. Shreya Gupta has relied upon  judgments rendered by two Coordinate Benches of this Court and a Division Bench. They are:-

(i). Ram Shankar Versus District Judge, Faizabad and others: 1998 (1) ARC 282 (paragraphs - 4, 11 and 16);

(ii). Karamat Ullah versus District Judge, Kanpur and others: 2000 (2) ARC 212 (paragraph-9); and 

(iii). Binda Prasad Versus IIIrd Addl. District Judge, Faizabad and others: 1984 (2) ARC 306 (Division Bench) (Paragraph - 9).

7. Ms. Shreya Gupta has also argued that not only the Prescribed Authority but also the Appellate Authority did not look into or ensure the right of re-entry under section 24(2) of the Act to the tenant-petitioner and she has referred to a judgment in Masjid Kacha Tank, Nahan Versus Tuffail Mohammed: AIR 1991 SC 455.

8. In Masjid Kacha Tank, Nahan Versus Tuffail Mohammed (supura) the landlord namely Masjid Kacha Tank has moved the trial Court for eviction of tenant on the ground that the disputed building was old and in dilapidated condition and needed reconstruction. After inspecting the building, the Presiding Officer came to the finding that the building was old and in a dilapidated condition and therefore, it required reconstruction and order of eviction was passed by the trial Court and which was affirmed in appeal by the lower Appellate Court also after making inspection of the building and finding it to be old and in dilapidated condition. Thereafter, in Civil Revision No. 180 of 1985 preferred by the tenant the order of eviction passed by both the Courts below was set aside by the High Court after reappreciating the evidences. Being aggrieved, the landlord Masjid Kacha Tank, Nahan preferred Civil Appeal in Supreme Court against the judgment and order of the High Court, which appeal was allowed by the Hon'ble Supreme Court and the orders of eviction of tenant passed by the Courts below were affirmed. In paragraph - 4 of the judgment the Supreme Court however has observed thus:-

"Considering all the facts and circumstances we are constrained to hold that the order of the High Court cannot be sustained and as such we set aside the same. We, however, direct that the landlord appellant shall take effective steps for completing reconstruction of the building within a reasonable period i.e. six months from the date the tenant/respondent vacates the building. The tenant is, however, given time till 31st March, 1991 to vacate the premises. We further direct the landlord/appellant to commence the construction work, if possible, the portion occupied by the tenant, immediately after his vacating the said premises. On completion of the construction the landlord will offer the said premises previously occupied by the tenant/respondent to occupy at the prevalent market rate of rent. The appeal is, therefore, allowed and the order of the High Court is set aside. There will be, however, no order as to costs."

(emphasis supplied)

9. Obviously, the appeal of Masjid Kacha Tank, Nahan, landlord, was allowed by the Supreme Court setting aside the judgment and order of the High Court and upholding the order of eviction of Courts below with certain observations in favour of the tenant. Ms. Shreya Gupta, learned counsel for petitioner by placing reliance on this very judgment has attempted to convince this Court that right of re-entry ought to have been granted by the learned Courts below under Section 24 (2) of the Act, while passing the order of eviction as has been granted by the Supreme Court to the tenant in Masjid Kacha Tank's case (supra).

10. It has been pleaded by the petitioner-tenant in the objection to the release application before the Prescribed Authority, that the proposed reconstruction plan submitted by the landlord-respondent did not make any provision for the tenant to re-occupy the tenement after its reconstruction. However, no finding has been returned  either by the Prescribed Authority or by the Appellate Authority ensuring re-entry of the tenant in the newly constructed building after its demolition. 

11. Shri Manish Tandon, Advocate, appearing for the landlord-respondent, on the other hand, has pointed out that from a bare perusal of the objections made to the release application by the petitioner-tenant before the Prescribed Authority, it is evident that the allegation regarding the map submitted of the proposed building construction not being according to the bye-laws is only a bald assertion. There is no definite pleading on record as to how the plan in question is not in accordance with the bye-laws either before the Prescribed Authority or before the Appellate Authority. This fact has been noted by the Appellate Authority in its judgment where it has referred to the argument raised by the tenant-petitioner, and also to the fact that the tenant-petitioner could not show as to which bye-law had been violated or had not been followed in the proposed map of reconstruction of the building in question. He has referred to several judgments by co-ordinate Benches of this Court which are as follows:-

(1). Baldeo Raj Vs. IV Addl. District and Sessions Judge, Saharanpur and others: 1982 ARC 333;

(2). Anil Kumar Jain Vs. Viith Additional District Judge, Saharanpur and others: 1995 (1) ARC 22;

(3). Mohd. Ibrahim alias Bafati Vs. Addl. District Judge (Special Judge), Allahabad and others: 1995 (2) ARC 374;

(4). Ram Shankar Vs. District Judge, Faizabad and others; 1998(1) ARC 282;

(5). Ram Chandra Sinha and another Vs. The District Judge, Lucknow and others: 1982 ARC 544; and

(6). Ram Kumar Hayaran Vs. Shankar Lal Hayaran and another: 1990(1) ARC 592.

12. Shri Manish Tandon has also referred to paragraph - 27 of the release application filed by the landlord - respondent before the Prescribed Authority which specifically asserts that if the tenant was to take newly constructed accommodation on rent, the landlords are willing to let out the same as provided under law. The undertaking having been given before the learned Courts below still stands and if after reconstruction the tenant - petitioner wishes to take on rent the newly constructed premises, then, he would be offered the same at the market rate of rent as is required under Rule.

13. It is settled law that burden of proof lies upon one who claims the existence or non-existence of certain facts. In this case, no specific bye-law could be pointed out before the Prescribed Authority or before the Appellate Authority to show that the map that was filed along with the release application by the landlord-respondent was not conforming to the same.

14. With regard to the judgment cited by the learned counsel for the petitioner, I have carefully perused the judgment rendered in Ram Shankar (supra) wherein this Court observed in paragraphs - 11 and 16 thus:-

"11. From the plain reading of the aforesaid statutory provisions, it is clear that before passing order of ejectment and allowing application for release under Section 21 (1) (b) of the Act. Prescribed Authority is required to satisfy itself, that building requires demolition and new construction, proper estimate of expenditure for the purposes of demolition and reconstruction has been prepared, a plan has been duly prepared which conforms to the bye-laws or regulations of the local authority, or other statutory authority and that the landlord had financial capacity for the purposes of demolition and new construction. It is not required that before passing order of release under clause (b) of sub-section (1) of Section 21, to take into account likely hardship to the tenant from the grant of application as against likely hardship to the landlord from the refusal of the application. Factors which are required to be taken into consideration for the purpose of clause (a) of sub-section (1) of Section 21, have been provided under Rule 16 of the Rules................"

"16. Legally what is required under Rule 17, is a duly prepared plan and not the sanctioned plan. A reference in this regard may be made to the case of Ram Chandra Sinha v. District Judge, 1983 (1) LCD 19, wherein it was held as under :

"7...............Under this clause the only requirement is that there should be a duly prepared plan for the building which is to be constructed after demolition of the existing building and this plan should conform to the bye-laws or the regulations of the local authority. A duly prepared plan had been placed on the record by the petitioners. It was not the case of the opposite parties that the said plan did not conform to the bye-laws or the regulations of the local authority. There is no requirement under Rule 17 that a sanction plan must be placed on record. In the circumstances I am of the opinion that the insistence of filing the sanctioned plan contained in the orders of the two authorities below is not justified."

(emphasis supplied)

15. From perusal of para - 16 of the Ram Shankar's case (supra) wherein para - 7 of the case of Ram Chandra Sinha v. District Judge, 1987 (1) LCD 19 has been referred to, it is evident that there is no requirement under Rule 17 that a sanctioned plan must be placed on record. Moreso, from perusal of para 11 of Ram Shankar's case (supra), it is also evident that the Prescribed Authority is not required before passing order of release under clause (b) of sub-section (1) of Section 21, to take into account likely hardship to the tenant from the grant of application as against likely hardship to the landlord from the refusal of the application. Thus, the case of Ram Shankar (supra) is also of no help to the petitioner.

16. Further, admittedly, the release application was filed by the landlord-respondent under Section 21(1)(b) of the Act. The contention of the learned counsel for the petitioner is that a release application under Section 21 (1) (b) of the Act would only be maintainable if the building in question is in a dilapidated condition and is required for purposes of demolition and new construction. The tenant-petitioner has brought no material on record to prove that the building in question is not in a dilapidated condition. On the contrary, the contents of para - 18 of the counter affidavit filed on behalf of the landlord-respondent is relevant for deciding the controversy involved in this petition, which make it clear that the building in question is in a dilapidated condition. Para- 18 reads as under:-

"That the contents of paragraph no. 22 of the writ petition are denied. It is further submitted that release application for same cause of action against number of tenants are well maintainable and there is no illegality.

It is pertinent to mention here that out of 13 tenants against whom release application was filed by the landlord-respondent, the 12 persons have already vacated the premises and the major portion of house in dispute, automatically got ruined, due to dilapidated condition and the portion occupied by the petitioner is also in pitiable and dilapidated condition and may fall any moment. For kind perusal of this Hon'ble Court a copy of the recent photograph and receipt issued by the photographer are being filed here with and marked as Annexure No. C.A. 5."

17. In rejoinder affidavit in para 16 in reply to para - 18 quoted above, no specific reply has been submitted by the petitioner and it has reiterated the contents of para - 22 of the writ petition wherein no pleading has been made on merits of the release application. It was not stated that the building was or was not in a dilapidated condition, but it has been stated that the release application under Section 21(1)(b) of the Act was liable to be dismissed on the ground of misjoinder of cause of action and also on the ground of misjoinder of parties, since as many as 13 different tenants were made party to the same petition for release of the demised premises, instead of preferring separate petitions.

18. However, the learned counsel for the petitioner has not advanced argument on this point of the matter before this Court. Thus, the contention of the learned counsel for petitioner that the release application under Section 21(1)(b) of the Act was liable to be rejected on this ground of has no force.

19. In Karamat Ullah (supra) Section 24(2) of the Act has been considered by a Coordinate Bench of this Court and it has been held that release application under Section 21(1) (b) could not be allowed denying the tenant his right of re-entry under Section 24(2). The matter was remanded back to the Appellate Authority with the direction that the appeal shall be restored to its original number and be heard and decided in the light of observations made in the judgment by this Court expeditiously preferably. Para - 9 of the said judgment is reproduced below:-

"While judging the powers of the Court in dealing with an application made under Section 21(1) (b) of the Act, one cannot altogether-overlook the provisions of Section 24(2) of the Act and Rule 17 which are both part of the same Statute. The provisions of Section 21(1) (b), Section 24(2) and Rule 17 have to be read in conjunction with each other and not in isolation in the context of the scheme of the Act. It is well settled principle of interpretation of Statute that construction should be meaningful so as to make the statute workable and not make it futile. The Court should adopt that construction which suppresses the mischief and advances justice. If we examine the provisions of Section 21(1) (b) along with Section 24(2) and Rule 17, under the Scheme of the Act the only harmonious construction will be that the requirement of conditions of Rule 17 has been made essential with an object to ensure that the tenant's right of re-entry as enshrined in Section 24(2) is not frustrated. Therefore, before an application under Section 21(1) (b) is to be allowed it becomes the duty of the authority concerned to examine minutely the sanctioned plan submitted by the landlord for the construction of new building in order to ensure that the tenant's option of re-entry as safeguarded under sub-section (2) of Section 24 will not be defeated or frustrated. Where in a given case if no such provision is made in the plan submitted by the landlord for re-construction, it would follow that the tenant's right of re-entry as guaranteed to him under Section 24(2) of the Act has not been secured and where he is deprived of that valuable right which he could exercise on completion of new building, no order under Section 21(1) (b) of the Act can lawfully be made."

20. In reply to the submission made by the learned counsel for petitioner relying on the observations made in para - 9 of case of Karamat Ullah (supra), Shri Manish Tandon has referred to paragraph - 27 of the release application filed by the landlord - respondent before the Prescribed Authority which specifically stated that if the tenant wanted to take newly constructed accommodation on rent, the landlords were willing to let out the same as provided under law. Thus, the contention of the learned counsel for the petitioner that provisions of Section 24(2) of the Act have not been considered by the learned Courts below is not liable to be accepted.

21. In Binda Prasad (supra) an Hon'ble Division Bench of this Court in paragraph - 9 merely observed that after plan is sanctioned and submitted along with release application before the Prescribed Authority, the Prescribed Authority has no right to examine the same with regard to the validity of such sanction as such sanction has already been given by the competent authority and the Prescribed Authority cannot sit in appeal over the decision of the competent authority.

22. However, the learned counsel for petitioner has placed reliance upon the observations made in paragraph - 9 of Binda Prasad' case (supra), which are:-

"The Prescribed Authority has also referred to a "sanctioned" plan. The Additional District Judge has referred to it likewise. Learned Counsel for the petitioner has, however, contended that it was not enough that there should be a sanctioned plan. The Prescribed Authority should itself independently examine whether the plan conforms to the relevant building bye-laws or regulations. In support of his contention he has relied on a decision of a Learned Single Judge reported as Ram Autar v. IInd Addl. District Judge, Moradabad and others, 1982 (1) Allahabad Rent Cases 124 (para 7). This ruling does, no doubt, support learned counsel for the petitioner. We are, however, not inclined to accept the view taken by the learned Single Judge. Of course, where only a plan has been prepared, but it is still to be sanctioned by the competent authority, then, no doubt, the Prescribed Authority must examine whether the plan conforms to the building bye-laws or regulations. Where, however, the competent authority, under the building bye-laws or regulations, has itself sanctioned the plan, it is not open to the Prescribed Authority or to the Appellate Court to sit in judgment over the decision of the said competent authority. The requirement of Rule 17, in this behalf, has to be reasonably interpreted and it cannot be so interpreted as to confer a part of appellate jurisdiction on the Prescribed Authority to sit in judgment over the decision of the local body or other competent authority on which the jurisdiction to examine the building plans has been conferred by the legislature. The view of learned Single Judge in Ram Autar (supra) on this point is overruled."

23. The reliance placed by the learned counsel for the petitioner on para - 9 of Binda Prasad's Case is misplaced. The observations made by the Division Bench that the Prescribed Authority should itself independently examine whether the plan conforms to the relevant building bye-laws or regulations can be relevant only if it was the case of the tenant-petitioner that the plan submitted by the landlord was not sanctioned by the local authority. The learned counsel for petitioner has not advanced any argument pointing out that plan submitted by the landlord-respondent along with the release application was not a sanctioned plan. She has only argued before this Court that the plan/map so submitted by the landlord-respondent was not conforming to the bye-laws of local authority. However, there is no such pleading on record as to how the plan in question was not in accordance with the bye-laws of the Local Authority. The petitioner could not show which bye-law of the local authority was violated or ignored.

24. On the contrary, the learned counsel for landlord-respondent has placed reliance on Judgment passed by a coordinate bench of this Court in Civil Misc. Writ Petition No. 7036 of 2000: Phoolwati (Smt.) and others versus VIIIth Additional District and Sessions Judge, Muzaffarnagar and another reported in 2005 (1) ARC 796, in paragraph - 8 this Court has observed thus:

"On the other hand, learned counsel for the respondent has supported the impugned judgment passed by the appellate Court and has contended with vehemence that there was complete compliance of Rule 17 and respondent No. 1 committed no illegality in allowing the application for release. He has urged that the landlady got an estimate prepared by an architect/engineer (Sri Y.C. Gupta) in respect of expenses on demolition and reconstruction of the building. The architect prepared a map also conforming byelaws and regulations of the local authority and the landlady gave her own affidavit regarding her financial capacity for the proposed demolition and reconstruction. He has drawn my attention to a Division Bench decision of this Court in Bindra Prasad Versus III Additional District Judge, Faizabad and others, 1984 (2) Allahabad Rent Cases, 306."

25. Having considered the arguments made by the learned counsel for the petitioner-tenant and also the landlord-respondent,  this Court finds that there is only a bald assertion in the objection to the release application and in the memo of appeal that the plan of proposed building was not in accordance with bye-laws of the local authority.  Neither bye-laws of the local authority were produced before the Prescribed Authority nor they were referred to specifically indicating as to which of bye-laws had been violated in the map submitted by the landlord-respondent before the Prescribed Authority along with the release application.  The initial burden lay upon the landlord-respondent in the release application to firstly show the dilapidated condition of the building in question and the need for its demolition and secondly to show under Rule 17 that he had got prepared a map for reconstruction and an estimate thereof and that he had the financial capacity to undertake the reconstruction.  Having submitted such map and estimate with report of the engineer and also proof of his financial capacity, the initial burden of proof stood discharged by the landlord-respondent. The burden of proof was now upon the petitioner-tenant to prove his allegation that the map was not in accordance with the bye-laws of the local authority. 

26. In so far as the second argument of the learned counsel for the petitioner is concerned, this Court has been taken through paragraph - 4 of the judgement rendered by the Hon'ble Supreme Court in Masjid Kacha Tank, Nahan (supra) wherein a direction was issued to the landlord to reconstruct the building within six months and to offer it to the tenant at the prevalent market rate of rent.  A submission has been made on the basis thereof by the learned counsel for the petitioner that in case this Court is pleased not to interfere in the orders impugned, then, this Court may bind the landlord to reconstruct the building in question within a specific time period and more specifically at least a one-room-flat be made first and offered to the tenant-petitioner as is required under Section 24 (2) of the Act.

27. The learned counsel for landlord-respondent has no objection if such a condition is placed upon the landlord respondent by this Court at this stage.

28. The orders impugned suffer from no factual or legal infirmity and do not warrant interference. Accordingly, this writ petition is dismissed, however, with a condition upon the landlord-respondent to reconstruct the building according to the plan sanctioned by the competent authority within a period of one year from the date of its demolition subject to the condition the petitioner-tenant vacates the premises in question within two months from today and to offer a one-room -accommodation therein to the tenant-petitioner at the prevalent market rate of rent before it is offered on sale or rent to others,

Order Date :- 19.4.2018

LBY