- (1.) A. B. Srivastava, J. This landlord's writ petition against the rejection of their applications under Sections 21 (i) (a) and (b) of U. P. Act 13 of 1972 by the appellate court for releasing a building in the tenancy of the respondent No. 3. The petitioners are owner of a double storeyed building in Mohalla Mahabirganj, Aligarh, the ground floor whereof is in the tenancy of the res pondent No. 3 who has been using the same for business. The first floor was in the possession of the petitioner but having become dilapidated the roof thereof fell. The entire building including the ground floor it is alleged is dilapidated requiring demolition and reconstruction. The petitioners also alleged that they have got the plan prepared and have got the means to under take the new construction. It was further alleged that ancestral house of the petitioner is situated in Mohalla Chhipeti, Dal Mandi, Aligarh. In mutual petition of the said building two rooms, a kothas, a latrine (sic) on the ground floor, one room, a kothari, kitchen, lavotory on the first floor, came to the share of Onkar Prasad, the predecessor in title of the petitioners Nos. 6 to 13, whereas the remaining portion of the residential house went to the share of Hoti Lal, the predecessor-in-title of petitioner Nos. 1 to 5. In the ground floor portion the branch of petitioner Nos. 6 to 13 has business whereas their entire family consisting of six persons live in the scantly accommodation on the first floor which is not sufficient for the them as well as for the married daughters and guests frequently coming and staying with them. They thus require the ground floor accommodation in the tenancy of the respondent to shift their business from the ground floor of the Chhipeti house and utilize the said ground floor portion for the purpose of their residence.
(2.) THE application was opposed by the respondent with allegation that it is not bona fide, the branch of Hoti Lal is living in a house in Sarai Nawab and not in the house in Chhipeti. THE accommodation in possession of the branch of Onkar Prasad is sufficient for their needs. THE first floor portion of the building in question fell on account of want of repairs. THE ground floor is not dilapidated and does not require reconstruction. THE shop of the petitioner is the building in question is more than 20 years old and he has earned good will and will be put to hardship if he is evicted, compliance of Rule 17 of Act 13 of 1972 has also not been made. The learned prescribed authority held that the building in question is dilapidated, compliance, of Rule 17 has been made, and the accommodation at the disposal of the petitioners of the branch of Onkar Prasad is inadequate for their needs. He accordingly allowed the release application. The appel late court, however, held that the building through out of repairs is not dila pidated, the branch of Hoti Lal lives in Mohalla Sarai Nawab whereas the branch of Onkar Prasad lives in the entire house in Mohalla Chhipeti, and does not bonafide need the accommodation in the tenancy of the respondent No. 3. He accordingly allowed the appeal and dismissed the release appli cation. Both parties' learned counsel have been heard the affidavits including the supplementary affidavit exchanged between them, have been gone through.
(3.) AS stated above, in this case the release was allowed by the learned Prescribed Authority on twin grounds of the shop in question being dilapidated requiring reconstruction, and the bonafide need of the petitioners No. 6 to 13 of the branch of Onkar Prasad. The appellate court, however, negatived both the points, and reversed the order of the Prescribed Authority. Taking up first the question of release under Section 21 (l) (b), the contention on behalf of the petitioners is that there was ample material on record to show that the building was dilapidated and the appellate court was unjustified in reversing the finding of the Prescribed Authority, its view that a building can be said to be dilapidated only if its fall is imminent, is unsustain able in law. The contention on behalf of the other side is that the mere fact of the first floor having fallen and the ground floor requiring repairs, does not mean that the building is dilapidated within the meaning of Section 21 (1) (b ).;