Anjani Kumar, J. - (1.) By means of the present writ petition under Article 226 of the Constitution of India the petitioners, who are the tenant of non-residential accommodation (shop), have challenged the orders dated 7.3.1984 and 10.3.1989, passed by the prescribed authority as well as the appellate authority, respectively. Annexures-11 and 12 to the writ petition.
(2.) The facts leading to the filing of present writ petition are that the landlord-respondent Nos. 3 and 4 filed an application under Section 21 (1) (b) of U. P. Act No. XIII of 1972 hereinafter shall be referred to as 'the Act' on the ground that the building in which the shop is situated, is In a dilapidated condition, therefore, it requires demolition and reconstruction. This application was subsequently amended and requirement under Clause 21 (1) (a) of the Act was also aided, i.e., the building in question is bona fide required by the landlord. The prescribed authority as well as the appellate authority has not accepted the case set up by the landlord with regard to Section 21 (1) (a), i.e., the bona fide requirement. However, with regard to Section 21 (1) (b) of the Act, the application was accepted and the petitioner was directed to vacate the shop in question. The petitioner has filed this petition against that part of the order of prescribed authority, whereby the application under Section 21 (1) (b) has been allowed. The landlord has not challenged the order passed by the appellate authority with regard to the rejection of his application under Section 21 (1) (a) of the Act.
(3.) Sri Pankaj Mithal, learned counsel appearing on behalf of the petitioners-tenant has argued that from the facts and circumstances of the case as also the evidence led before the prescribed authority, the building cannot be said to be in dilapidated condition and as such, it cannot be released for demolition and re-construction. On this aspect of the matter, both the courts below, namely, the prescribed authority as well as the appellate authority has recorded findings. Sri Mithal challenged these findings on the ground that the material evidence has not been considered by either of the authorities. Petitioners' counsel refers to an affidavit of Harishchandra, a labour, who had been engaged by the landlord for demolition of the roof of last portion of the shop and thereafter on the pretext that it requires repairs he left it open for rain water to pore in order to make out a case under Section 21 (1) (a) of the Act. Both these averments are made in the written statement but the landlord denied the same. In view of the submissions and denial. It was incumbent on the part of the authority to have recorded a finding but the authority has not recorded the findings and has arrived at the conclusion that the building is in dilapidated condition. Surprisingly, this finding has been recorded after the spot Inspection by the Court and it is this Court which has found that the last portion of the roof of shop of the building is removed, but inspite of the pleadings the evidence it has not considered the materials and arrived at the findings as to whether it was deliberately done or it was the natural fall because of which the roof has fell down. Sri Mithal relied upon a decision in Ram Kumar v. IIIrd Additional District Judge. Faizabad and others, 1986 (2) ARC 275. Paragraphs 6 and 7 of the aforesaid decision are relevant, which are reproduced below : "6. Section 21 (1) reads that 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 the following grounds exists, namely : "(1) (b) that the building is in dilapidated condition and is required for purpose of demolition and new construction." 7. In the aforesaid section Itself, there is nothing to reveal that if the house is not in a dilapidated condition and it is damaged then in the latter case what result would follow and if there should be any distinction in that event. In the case of Smt. Chando Devi and others v. IIIrd Additional District Judge, Mathura, 1984 AWC 5 : 1984 ALJ 56, it was held that the word "dilapidated" cannot be read in isolation or divorced from the context in which it is used ........................... requirement or reconstruction gives clue to the sense in which the word "dilapidated" should ................... In order to attract Section 21 (1) (b) the building in question must be beyond repairs and it has to be demolished and reconstructed intended by introducing Section 21 (1) (b) of the Act that a dilapidated building shall be that building which is decayed in the natural course and not that which is made dilapidated deliberately. This is why nothing about the damaged building has been mentioned in the Act. So, it has to be seen that if the landlord has deliberately damaged the building with a view to evict the tenant as the landlord was interested in evicting tenant. If it is made permissible to a landlord to damage or make his building dilapidated for achieving his ends of evicting the tenant, there would be a gross misuse of the provisions of Act XIII of 1972.";