- (1.) S. U. Khan, J. This is landlord's writ petition arising out of eviction/release proceedings initiated by them against original tenant-respondent Ishtiaq Khan (since deceased and survived by legal representatives) under Section 21 (1) (b) of U. P. Act No. 13 of 1972. Release application was registered as Rent Case No. 42 of 1983 on the file of Prescribed Authority, Rampur. It was stated in the release application that premises in dispute which was in the form of a shop was more than 100 years old and was in a dilapidated condition. The rest portion of the building of which the shop in dispute is a part, was also in the tenancy and occupation of other tenants. Against those tenants also release application was filed by the landlords in the form of Application No. 31 of 1981 which was allowed on 18-10-1982 and appeal filed against the said order was also dismissed on 8-12-1982 and those tenants delivered possession of the portions in their tenancy occupation to the landlords. In those proceedings it was held that the building was in dilapidated condition.
(2.) IN the case giving rise to the instant writ petition landlords filed affidavits of several persons including affidavit of Kunwar Bahadur Saxena, who was an overseer of Municipal Board, Rampur. He had stated that building was about 100 years old and was in a dangerously dilapidated condition, walls had cracks and roof had broken and could fall at any time. Petitioner stated that roof was of mud. Prescribed Authority/munsif, Rampur held that the building was in a dilapidated condition. Prescribed Authority further held that provisions of Rule 17 of the Rules framed under the Act had been complied with. Release application was ultimately allowed on 21-8-1984. Against the said order original tenant- respondent No. 3 filed Rent Appeal No. 87 of 1984. Second Additional District Judge, Rampur allowed. The Appeal on 14-3- 1985 and set aside the judgment and order passed by the prescribed Authority. This writ petition is directed against the aforesaid judgment of the Appellate Court. Appellate Court noted that in respect of other portion of the same building release application had already been allowed and appeal against the said order had also been dismissed. However, while reversing the finding of the Prescribed Authority on the condition of the building the Appellate Authority completely ignored the judgments in respect of adjoining portions. Kanwar Bahadur Saxena, the Overseer in his affidavit had stated that the roof had broken down. However, Appellate Court held that Kunwar Bahadur Saxena stated that roof had holes. Appellate Court held that the age of the building was not at all material and what was material was the material, which was used in construction. However, at that juncture the Appellate Court completely ignored the statement contained in the affidavit of one of the landlords that roof was of mud (in earlier part of the judgment this averment had been noted by the Appellate Court ). Actually, the Appellate Court was under the impression that unless the building was in a ruinous condition and under imminent danger of falling down, it could not be described as dilapidated. It is not the correct meaning of the word 'dilapidated' as used under Section 21 (1) (b) of the Act. The building was 100 years old constructed by mud and roof had broken down. These facts were sufficient to hold the building in dispute to be in dilapidated condition. Further, the fact that adjoining portions had been held to be in dilapidated condition by Prescribed Authority as well as Appellate Court, was a very material piece of evidence. If major or substantial portion of a building is in dilapidated condition, the reasonable presumption will be that the remaining portion of the building is also in a dilapidated condition. If the entire building is constructed at the same time, the condition of each and every portion of the building more or less will be the same. Appellate Court was impressed by the fact that under the Rent Control Act there was no time factor prescribed for the landlord to demolish and reconstruct after getting possession on release of a building under Section 21 (1) (b) of the Act. The Appellate Court in penultimate paragraph of its judgment observed as follows: "no doubt Section 24 of U. P. Act No. 13 of 1972 makes a provision for re-entry but Act no where stipulates time for reconstruction. What, if the landlords do not demolish and reconstruct the premises for 10 years ?"
(3.) THE Appellate Court is right to the extent that there is a lacuna under Section 21 (1) (b) and Section 24 (2) of the Act inasmuch as these sections do not provided for any period for demolition and completion of new construction. However, this lacuna can be removed by passing appropriate order by the Courts while allowing release application. Accordingly, I find that the judgment and order passed by the Appellate Court is erroneous in law as it has ignored and misread important piece of evidence and it has not correctly appreciated the meaning and import of the words "dilapidated condition" used in Section 21 (1) (b) of the Act. In my opinion the Prescribed Authority has rightly held that the building in dispute was in dilapidated condition.;