- (1.) S. U. Khan, J. This is landlords writ petition arising out of release proceedings initiated by them against tenant- respondent No. 1 Kishori Lal under Section 21 (1) (b) of U. P. Act No. 13 of 1972. Property in dispute is a shop. In the release application it was stated that building was in a dilapidated condition. Release application was registered as Case No. 21 of 1984. Prescribed Authority Chandausi, rejected the release application on 18-4-1985. Landlords filed R. C. Appeal No. 30 of 1985 against the judgment and order of the Prescribed Authority, Vth A. D. J. , Moradabad on 18-10-1985 dismissed the appeal hence this writ petition.
(2.) IN the rejoinder-affidavit as well as in the application dated 16-5-2005 supported by the supplementary-affidavit of petitioner No. 1 it was stated that during pendency of the writ petition the shop in dispute had completely fallen down. On 9-3-2005 learned Counsel for tenant-respondents was allowed four weeks time to verify condition of the building from his client. Thereafter on 8-8-2005, learned Counsel for the respondent was granted three weeks' time to file affidavit in respect of condition of building with the rider that if no affidavit/counter-affidavit was filed the allegation of the landlord might be taken to be correct. No counter-affidavit to the affidavit of landlord has been filed. If during pendency of the writ petition building has completely fallen then there is no option except to allow the release application of the landlord. Supreme Court in Lekh Raj v. Muni Lal, 2001 (43) ALR 268 (SC), has held that in case of proceedings for release or eviction on the ground of dilapidated condition, the deterioration in the building which takes place during pendency of proceedings before High Court, if they are long drawn, may also be taken into consideration. Learned Counsel for the respondent has cited Ranjeet Singh v. Ravi Prakash, 2004 (2) JCLR 400 (SC) : 2004 (17) AIC 51, to contend that findings of fact cannot be interfered with in exercise of writ jurisdiction. In this regard one more authority in Saadat Ali v. A. D. J. , Farrukhabad, 1984 (2) ARC 615, has also been cited. I am not inclined to interfere in the findings recorded by the Courts below. However, even if building was not in dilapidated condition when Courts below decided the case still it has fallen down during pendency of the writ petition. This fact is so important that it is bound to be taken into consideration.
(3.) ACCORDINGLY, writ petition is allowed. Both the impugned orders are set aside. Building stands released in favour of the landlords. In the affidavit filed in support of application dated 16-5-2005, it was also stated in para 5 that the tenant had permanently shifted to Bombay. In view of this there is no need to initiate separate proceedings under Section 23 of the Act for taking possession. The possession of the shop in dispute in whatever condition it may be today stands delivered in favour of the landlords through this judgment. Landlords are directed to positively re-construct the shop within six months from today. Tenant is entitled to apply for taking possession of the newly constructed shop under Section 24 of the Act immediately after its re-construction. In case shop is not reconstructed within six months from today landlord-petitioners would be liable to pay damages of Rs. 25,000 to the tenant-respondent which may be recovered through application filed before prescribed authority concerned. Petition disposed of. .;