S.K.Mukerjee, J. - (1.) I have heard learned counsel for the parties. The petitioners are tenants in the accommodation in question, and respondent No. 3, Hakim Mohammad, is the landlord. The landlord moved an application under Section 21(1)(a)(b) of the U.P. Act No. XIII of 1972, (hereinafter referred to as the Act). The application was based on the averments that the landlord for the purposes of Hikmat wants accommodation, in question, for his personal need and the other ground was that the accommodation, in question, was in dilapidated condition and required reconstruction. The landlord has filed a duly sanctioned map. He has also filed a pass book to show his financial condition. After hearing the parties the Prescribed Authority by his order dated 29 -1 -1981 allowed the application of the' landlord on 'both the counts. The Prescribed Authority held that need of the landlord was bona fide and more acute than the tenants. It was also held that the landlord has satisfied the requirements of Rule 17 of the Rules framed under the aforesaid. Act. The Prescribed Authority has also referred the estimate prepared by Mohammad Ismail and also referred the affidavit filed by him. The estimate has been shown as Rs. 21,000. It has also been brought on record that the landlord had in his pass book Rs. 85,000. Thereafter an appeal was preferred against the order of the Prescribed Authority. This appeal was registered as Rent Control Appeal No. 135 of 1979. Ultimately this appeal came up for final hearing before the 1st Additional District Judge, Jaunpur. The appellate court by his Judgment, Annexure -9 to the writ petition, dismissed the appeal of the tenants. Hence the present writ petition. Learned counsel for the petitioner has supplied a certified copy of the aforesaid judgment of the 1st Additional District Judge. Jaunpur dated 29 -7 -1981. I have perused the Judgment of the appellate court. The appellate court has considered the needs of the landlord for the eviction of the petitioners -tenants under Section 21(1)(b) only. The appellate court came to the conclusion that the accommodation was in dilapidated condition. The appellate court further has pointed out that the plan (Paper No. 480) was sanctioned by the Municipality on 21 -8 -1979. The appellate court had also referred about the Pass book for the purposes of showing that the landlord was in possession of sufficient money for financing the construction. The appellate court ultimately came to the conclusion that the landlord has fully proved the requirements of law under section 21(1)(b) of the Act. The appellate court also recorded a finding that the tenants have an alternative accommodation. On the basis of the above materials the appellate court dismissed the appeal of the tenants. It will be necessary to point out that the Prescribed Authority had also allowed two, years rent as compensation to' the tenants for their eviction. The appellate court, however, did not consider the case under Section 21(1)(a) as it was convinced that the case was fully covered by Section 21(1)(b) of the Act.
(2.) A perusal of Rule 17 of the Rules framed under the Act makes it clear 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: (i) that the building require demolition: (ii) that a proper estimate of expenditure over the proposed demolition and new construction has been prepared. (iii) that a plan has been duly prepared and conforms to the bye -laws or regulations of the local authority or other statutory authority under any law in that behalf for the time being" in force; and (iv) That the landlord has the financial capacity for the proposed demolition and new construction. It is true that the Prescribed Authority has fully considered the above conditions before recording a finding in favour of the landlord under Section 21(1)(b) of the Act Before the appellate court the matter was fully argued and from a perusal of the judgment' of the appellate court it is clear that it has not recorded any finding on the question that a proper estimate of expenditure over the proposed demolition and new construction has been prepared. The estimate prepared by Mohammad Ismail has not been considered. The provisions, of Rule 17 of the Rules framed under the Act are mandatory in nature and therefore, the appellate court while exercising powers under Section 22 of the Act has the same powers as have been conferred on the Prescribed Authority and it was incumbent upon the appellate court to satisfy itself that there was a proper estimate of expenditure over the proposed demolition and new construction has been prepared. In the Judgment of the appellate court there is no finding in respect of Rule 17(1)(ii). In respect of all other findings recorded by the appellate court, I am satisfied that they do not require any modification and as such the other such findings are confirmed. However, in absence of the finding as pointed out above, it is necessary to remand the case back to the appellate court only to record a clear finding in respect of Rule 17(1)(ii) of the Rules framed under the Act. In the result, this petition is partly allowed and the case is remanded back to the appellate court to record its satisfaction in respect of the fact that a proper estimate of expenditure over the proposed demolition and new construction has been prepared on behalf of the landlord and then decide the appeal finally without disturbing the finding already recorded by the 1st Additional District Judge, Jaunpur, by his judgment dated 29 -7 -1981. It is also made clear that the appellate court shall not entertain any fresh evidence and shall decide the question on the basis of the materials already on the record as expeditiously as far as possible without a period of three months from the date of filing of a certified copy of the Judgment before him. However, parties shall be given full opportunity of hearing. However, it will be also open for the appellate court to record its finding on the question of personal need under Section 21(1)(a) of the Act. The writ petition is partly allowed. The Judgment of the 1st Additional District Judge, Jaunpur, dated 29 -7 -1981, Annexure -9 to the writ petition, is set aside subject to the observations made above in this judgment. However, there shall be no order as to costs.;