R.H. Zaidi, J. - (1.) HEARD the learned counsel for the parties. By means of this petition under Article 226 of the Constitution of India, the petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 10.10.1998 passed by the Prescribed Authority in exercise of powers under Section 21(1)(b) of U.P. Act No. 13 of 1972 allowing the release application and the order dated 29.3.93 dismissing the appeal filed by the petitioners against the order passed by the Prescribed Authority.
(2.) IT appears that respondent No. 3 Sri Shambho Dayal Shukla filed an application under Section 21(1)(b) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction Act, 1972 (for short the Act), pleading that the property in dispute which consisted of a kachchi kothri was owned by Riyasat Kunwar, which was subsequently purchased by respondent No. 3 and some other persons. By partition through Court the respondent No. 3 became exclusive owner of the aforesaid kothri. It was alleged that kothri has become dilapidated and the same would either fall down or be demolished by the Municipal Board, Sultanpur. Respondent No. 3 wanted to reconstruct the new building for which he had got the financial capacity. A building plan was also got prepared and sanctioned from Municipal Board. Thus in substance the land was sought to be released by respondent No. 3. The release application filed by respondent No. 3 was objected to and opposed by the petitioners on the ground that there existed no building on the spot. The kothri which existed on the land in dispute was got demolished by the respondent No. 3 in collusion with municipal authorities. It was pleaded that late Husaini Ram Halwai, the father of the petitioners, was its original tenant who had died during the pendency of the proceedings. On his death, petitioners inherited the tenancy rights and continued in possession of the same. It was stated that respondents No. 3 wanted to eject the petitioners by force, therefore, they filed a suit for permanent injunction, which was ultimately decreed and the respondent No. 3 was restrained from ejecting the petitioners. Thereafter, the application was filed by the respondent No. 3 under Section 21(1)(b) of U.P. Act No. 13 of 1972 to eject the petitioners from the kothri in dispute. Parties in support of their cases produced evidence oral and documentary. The Prescribed Authority, after hearing the parties, perusing the evidence although held that the kothri which existed on the land in dispute was demolished before filing of the release application under Section 21(1)(b), but took the view that tattar in question erected by the petitioners comes within the definition of the building, which required reconstruction. Having recorded said findings, passed the judgment and order dated 10.10.1988, allowing the release application. Petitioners filed appeal against the said orders, but appeal was also dismissed by the appellate authority by its judgment and order dated 29.3.93. Aggrieved by the aforesaid judgments, petitioners have filed the instant writ petition.
(3.) LEARNED counsel for the petitioners urged that the judgments and orders passed by the authorities below were wholly illegal and without jurisdiction. It was urged that provisions of Section 21(1)(b) had no application to the present case as admittedly at the time of filing of application there existed no building. The kothri which was let out to the father of the petitioners was admittedly demolished before filing of the aforesaid application before, even the provisions of Section 29 -A of the said Act were not applicable to the present case. Learned counsel for the petitioners urged that the writ petition was liable to be allowed. On the other hand learned counsel for the contesting respondent contended that the tattar in question comes within the definition of building, the authorities were, therefore, right in allowing the release application and in dismissing the appeal filed by the petitioners, that the judgments and orders were perfectly valid and were liable to be upheld.;