M. P. Mehrotra, J. - (1.) THIS petition arises out of the proceedings under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act No. XIII of 1972.
(2.) THE facts, in brief, are these. An application under section 21(1)(b) of the Act was given by the respondent No. 3 against the petitioner. THE respondent No. 3 was the land-lord and the petitioner was the tenant. THE accommodation in dispute situated in an old building was a shop. A copy of the said application is annexure-1 to the petition. THE petitioner filed a written statement. A true copy of which is the annexure-2 to the petition. THE 'aforesaid landlord, respondent No. 3, filed his own affidavit in support of his application under Section 21 (1) (b). A true copy of the said affidavit is annexure-3 to the petition. THE Prescribed Authority by his order dated 16-1-1980 allowed the said application for release. A true copy of the said order is annexure-4 to the petition. THEreafter an appeal was filed and the same was dismissed by the appellate court by its judgment dated 10-4-1980. A true copy whereof is filed as annexure 5. A certified copy of the said judgment is also on the record. Feeling aggrieved, the tenant has now come up to this Court and in support thereof, I have heard Sri R. K. Jain. In opposition, learned counsel for the landlord has made his submission. THE learned counsel for the petitioner firstly contended that the application for release was in reality an application under Section 21 (1) (a) and not an application under Section 21 (1) (b). In my view, this contention has no force. It was never raised in the forms below. This contention has not even been raised in the writ petition itself. Learned counse' asserts that it is a pure question of law and he can raise it in the argument. It is difficult to accept this submission. However, apart from the said aspect of the matter, it is obvious that the application is headed as one under Section 21 (1) (b). THEre is no averment in the application that the building after its demolition and reconstruction was bonafide required by the landlord for his own occupation. It should further be seen that in view of the first proviso of Section 21 an application under Section 21 (1) (a) could not be moved within a period of three years from the date of the purchase of the property. In the instant case the properly was purchased on 5-10-78 and the application under Section 21 was moved on 23-10-78. Obviously, in view of the said proviso, the application could not be moved under Section 21 (1) (a) and it was clearly moved under Section 21 (1)(b). The next contention of the learned counsel for the petitioner is that, even if, it was an application under Section 21(1)(b), still the question of bonafide or mala fide of the landlord was relevant and the appellate court was wrong in thinking that the said aspect was not relevant. It should be seen that the tenant was alleging that it was the applicant landlord who caused damage to the building in question through an accident and that it was the landlord who himself had manipulated the said accident against the building in question. It should be seen that this controversy was considered by the Prescribed Authority and it was held that the tenant's allegation was incorrect. The accident was caused before the building was purchased. The appellate court, however, held that in an application under Section 21 (1) (b), it was not necessary to go into the aforesaid controversy. It was observed :- "In considering the condition of the building we are not called upon to consider the intention of the landlord, as also whether or not the landlord was directly or indirectly connected with the truck accident when a substantia! part of the building had fallen down." In my view the question of bonafide or malafide is not relevant under Clause (b) of Section 21 (1). In Clause (a) specifically it has been laid down that the landlord should bonafide require the accommodation. In Clause (b) the only requirement is :- "That the building is in a dilapidated condition and is required for purposes of demolition and new construction." In my view, therefore, this contention is untenable. Learned counsel for the petitioner next contended that it is not open to a landlord to construct a new building completely of a different type, different form the old building which was demolished by him in pursuance of the permission granted under Clause (b) of Section 21(1) of the Act. Counsel elaborated to say that in the instant case the map of the proposed building shows that it was radically a different structure compared to the old building. In this connection, learned counsel placed reliance upon Rule 17 of the Rules framed under the Act. In my view, the aforesaid provision in no way supports the contention of the learned counsel. Rule 17 framed with reference to Section 21 (1) (b) only requires that there should be a plan duly prepared and the same should conform 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. It is obvious that the approach which the learned counsel for the petitioner is suggesting will not be conducive to the construction of a new building. It is clear when the old structures are demolished and completely new constructions are erected they are likely to be absolutely different from the old structures. Such an interpretation will not be in the interest of the building activities.
(3.) LEARNED counsel next contended that there was a substantial non-compliance with the requirement laid down under Rule 17 of the Rules famed under the Act. He contended that the building did not require demolition and in this connection he placed reliance on a decision reported in Gaya Prasad v. IVth Addl. District Judge, Aligarh, 1982 ARC 49. In the said decision a reference was made to Piarey Lal v. Addl. District Judge Bijnor, 1980 ARC 240. It has to be seen that this argument is really not called for in the facts of the present case. The clear finding of the authorities below is that the structure in question was not only dilapidated but also required demolition. It is observed in the appellate court's judgment that : "The building given a deserted look and if not demolished, it may become dangerous after a year or two. It is situate in a thickly populated area and may prove a hazard to the general public during rainy season". It was next contended that no proper estimate of expenditure of the proposed demolition and new construction was prepared and submitted to the Prescribed Authority. This is not correct. The Architect who prepared and submitted the plan also submitted the estimate of such expenditure and his estimate of such expenditure was Rs. 14,600/-. The order of the Prescribed Authority has referred to this aspect of the said matter and the appellate court has affirmed the decision of the Prescribed Authority.;