- (1.) S. U. Khan, J. This is landlord's writ petition arising out of eviction release proceedings initiated by him against tenant respondent No. 2 under Section 21 (1) (b) of U. P. Act No. 13 of 1972. Release application was registered as R. C. Case No. 62 of 1981 and was allowed by Prescribed Authority, Additional Civil Judge Bulandshahr through judgment and order dated 15-2-1983. Tenant respondent No. 2 filed appeal against the said judgment under Section 22 of the Act which was registered as R. C. Appeal No. 5 of 1983. V Additional District Judge, Bulandshahr through judgment and order dated 6-5-1983 allowed the appeal and set- aside the order of the Prescribed Authority and dismissed the release application.
(2.) THE only point involved in the case on which both the Courts below have differed was that as to whether building in dispute was in a dilapidated condition. At the time of filing of release application the building in dispute was more than 100 years old. Lower Appellate Court himself inspected the premises. Lower Appellate Court in its judgment on page 62 of the paper book has held "it has to be seen whether the shop in dispute is in a state of decay or partly in ruins and is not fit for being used for the commercial purpose. At the time of my inspection the tenant was found carrying on his business in the disputed shop and his goods were lying there. THEre is nothing in the report of Sri Jitendra Kumar Agrawal, Civil Engineer that the shop in dispute cannot be used for business purpose and is in dangerous condition. " Both the parties had filed reports of their architects. Sri Jitendra Kumar Agrawal had filed report in favour of the landlord while Sri A. K. Bansal had filed report in favour of the tenant. Appellate Court on the basis of his inspection agreed western wall can not be said to be deep holes and only some small portion of bricks was found detached. " In my opinion the findings recorded by lower Appellate Court are erroneous in law. The lower Appellate Court was labouring under misconception of law that in order to be in a dilapidated condition as mentioned in Section 21 (1) (b), the building must be either in a ruinous condition or in a condition of partial decay. As mentioned in the above two authorities, this is not the correct approach. Accordingly, I hold that the judgment and order passed by the lower Appellate Court is erroneous in law and requires to be set-aside. The prescribed authority had taken into consideration the material on record and recorded the finding on dilapidated condition of the building in dispute. The inspection made by lower Appellate Court does not weaken the said finding.
(3.) THERE is one more aspect of the matter. This writ petition is pending for 21 years and as the said building was already about 100 years old at the time of inspection and decision of Appellate Court and the roof was of either tin sheets or wooden Karis, planks and bricks hence it may be presumed that the intervening two decades must have further weakened the condition of the building. Roof of wooden Karis, planks and bricks by its very nature has got shorter life than cemented or RCC roof. Accordingly writ petition is allowed. Judgment and order passed by the lower Appellate Court is set- aside. Judgment and order passed by the Prescribed Authority is restored.;