- (1.) SUDHIR Narain, J. Respondent Nos. 3 and 4 are landlords house No. 166, Dondipur. Allahabad. They filed ah application for release under Section 21 (1) (b) of U. P. Act No. 13 of 1972, mainly on the allegation that the accommodation in question is dilapidated one and requires demolition and reconstruction. The petitioner contested the said application and denied that it was in dilapidated condition. The Prescribed Authority recorded a finding that the disputed building is in dilapidated condition and he allowed the appli cation by order dated 7-11-1994. The petitioner preferred an appeal against the said order and the Appellate Authority, respondent No. 1, had dismissed the appeal vide order dated 1-8-1995. the petitioner has challenged this order in the present writ petition.
(2.) I have heard learned counsel for the parties. Learned counsel for the petitioner has urged two points. It has been submitted that there was no compliance of clause (iii) of Rule 17 which provides that before allowing an application for release of the building under Section 21 (1) (d) on the ground that it is required for purpose of demolition and new construction, the Pres cribed Authority shall satisfy itself that a plan has been duly prepared and conforms to the Bye-laws or Regulations of the Local Authority or other Authority under any law in that behalf for the time being in force but the landlord did not comply with this requirement and the application under Section 21 (l) (d) should not have been allowed by the Prescribed Authority. A copy of the release application has been annexed as Annexure 3 to the writ petition. In paragraph 9 of the application it has been stated that the peti tioner had applied for sanction of map for reconstruction. This paragraph was vaguely denied by the petitioner in his objection. There was no averment that the landlord had not submitted any map for sanction or reconstruction before the Local Authority concerned. The landlord-respondent had filed a receipt issued by the Allahabad Development Authority on 6-2-1992 indicating that the petitioner has submitted an application and receipt dated 6-2-1992 showing deposit of Rs. 40 as fee. On these documents Prescribed Authority believing the averments made in the affidavit that the landlord had filed a map for sanction, held that there was compliance of clause (iii) of Rule 17 of the Rules framed under the Act. The Prescribed Authority further relied upon the plan, for reconstruction prepared by Shri A. K. Gupta, Architect, paper No. 36-B. The petitioner filed an appeal against the order of the Prescribed Authority and in the memo of appeal no specific ground was taken that the landlord did not file any map for sanction before the Development Authority. There was a vague ground taken in the memo of appeal that the respondent failed to comply with Rule 17 of the Rules framed under the Act. The Appel late Authority held that the respondent bad filed the map for sanction. It was proved by the receipt filed by the respondents which clearly indicates that they had submitted a map for sanction before the authority concerned. Learned counsel for the petitioner submitted that landlord-respondent No. 3 did not submit any application for sanction of the map before the Allahabad Development Authority and the findings recorded by the Prescribed Authority and the Appellate Court are erroneous. It is urged that the appli cation for release is dated 13th January, 1992 and the affidavit filed in support of the application is dated 20-1-1992 while the receipt and the permit fee which is alleged to have been filed for sanction of the map is dated 6-2-1992. The receipt is paper No. 30-B and permit receipt is paper No. 31-B. The petitioner in his counter-affidavit filed before the Prescribed Authority never stated that he made an inquiry and on such inquiry ha found that no application for sanction of the map for reconstruction of the house in question has been tiled. The landlord-respondent had filed affidavit and also filed the permit receipt and the receipt indicating that it was in connection with submitting a map for sanction. In absence of any counter version by the petitioner, respondents Nos. 1 and 2 relied upon the affidavit of the landlord that he had filed appli cation for sanction of the map for reconstruction of the house iu question and normally when the map is submitted for sanction it is prepared by some quali fied Engineer or architect. The finding of respondents Nos. 1 and 2 that a map was Sled for sanction of the proposed construction, does not suffer from any manifest error of law. Rule 17[iii) of the Rules framed under the Act does not contemplate that application under Section 21 of the Act cannot be allowed till the map is duly sanctioned by the local authority concerned.
(3.) MOREOVER, in the present case respondent No. 3 had filed a map paper No. 36-B, prepared by Sri Anil Kumar Gupta, Architect of the proposed construction. The disputed accommodation consists of two Kotharies, Courtyard and bath room etc. It has been found to be in total dilapidated condition. The constructions are to be made on the same place where old construction exists. The petitioner bad at no stage stated that the map of the proposed construction submitted by the Prescribed Authority, paper No. 36-B with his own record does not conform to the Bye-laws or Regulations of the local Authorities or other statutory Authority under any law in that behalf. Even in the present writ petition the petitioner has not stated anywhere that the map submitted by architect for the proposed construction (paper No. 36-B) does not conform to the Bye-laws. It is not open to the petitioner to urge that respondent No. 3 has not complied with Rule 17 (iii) of the Rules framed under the Act. In Anil Kumar Jain v. VIIth Additional District Judge, Saharanpur, 1995 (1) ARC 22 : 1995 (1) JCLR 49 (All), it was held that it is the duty of the party assailing the plan to point out the precise bye-law which was flouted by the peon, and then of course, the Prescribed Authority would be duty bound to examine and come to a conclusion whether or not it conforms to the said provision. In the absence of any such specific assertion on the part of the petitioner, it will not be open to the petitioner to contend that the plan does not conform to the Bye-laws. Learned counsel for the petitioner has placed reliance on Binda Prasad v. IIIrd Addl. District Judge, Faizabad, 1984 (2) ARC 306, wherein it was held that when a plan has been prepared but it is still to be sanctioned by the competent authority, the Prescribed Authority must examine whether the plan conforms to the Building Bye-laws or Regulations but where the Competent Authority under the Building Bye-laws or Regulations had itself sanctioned the plan, it is not open to the Prescribed Authority or to the Appellate Court to sit in judgment over the decision of the said Competent Authority.;