Poonam Srivastav, J. - (1.) HEARD Sri Manas Bhargava, learned counsel for the petitioner and Sri Ashok Kumar Srivastava and Sri Anil Kumar Singh, advocates for the contesting respondents.
(2.) THE instant writ petition was admitted on 8.9.1995. Counter and rejoinder-affidavits have been exchanged. Supplementary-affidavit on behalf of the respondent No. 4 as well as on behalf of the respondent No. 7 were filed on 15.9.2008 and 24.3.2009 respectively to which supplementary counter-affidavits have been filed by the petitioner. An impleadment application was filed on behalf of Shitala Prasad, son of Sri Mathura Prasad and Parvati wife of Gurcharan but the learned counsel appearing for the applicant made statement before the Court that he will challenge the order of the appellate court in a separate writ petition and, therefore, was rejected as not pressed on 5.5.1998. A rent case was instituted by predecessor of the respondent Nos. 3 and 4 under Section 21 (1) (a) of the U. P. Act No. 13 of 1972 (hereinafter referred to as 'the Act'). The application for release was instituted against the petitioner No. 1 Smt. Sukhdei and Chhotey Lal husband of petitioner No. 2 Smt. Ganga Dei. It is contended in the writ petition that there were other tenants as well whose impleadment application was got dismissed as not pressed. The ground for release was that the landlords are owners of premises No. 14/49-F, Civil Lines, Kanpur which was purchased by them by means of two separate sale deeds from the previous owner Sri Mathura Prasad. The landlord contended that the construction is an old one and is in a dilapidated condition and the same is required for reconstruction. The entire disputed premises comprised of five different portions. Written statement was filed by the petitioners and they claimed that they are in possession of one room size 12 ft. x 12 ft. which is multi-purpose room used for sleeping, sitting, kitchen etc. but the assertion of the landlord was disputed that the building is 60 years old. The petitioners' case was that the premises in dispute is absolutely safe and in sound condition. On account of neglect of the landlord, the building is Shabby in appearance for want of annual repairs but the structure is strong enough and does not call for demolition and reconstruction, at the maximum it is case of some repair. It was specifically stated in the written statement that neither there are any cracks in the wall nor in the arch roofing. There was no danger of its collapsing. The assertions made in the release application is just an excuse to get it vacated. Another written statement was filed on behalf of the petitioner No. 2 which are all on record. It was specifically asserted in paragraph 20 of the written statement which is quoted in paragraph 11 of the writ petition, is as follows : "20. That the Nagar Mahapalika/K.D.A. declared the disputed premises under Slum Area Scheme and at the time when the acquisition proceedings were going on, the petitioners filed the objections and alleged that the building is in perfect and sound condition and it cannot be acquired under Slum Area Scheme and the petitioners have challenged the orders of acquisition before the Hon'ble High Court." The prescribed authority vide order dated 30.9.1993 rejected the application of the respondent Nos. 3 and 4 coming to a conclusion that the building is not in dilapidated condition. If the building is taken care and some repair is done, it will be fit enough for a number of years. The condition of the building does not call for demolition and reconstruction. The copy of the order passed by the prescribed authority dated 30.9.1993 in Annexure-5, against which the landlord preferred Rent Appeal No. 87 of 1992 in the Court of VIth Additional District Judge, Kanpur Nagar. The appeal was allowed vide judgment and order dated 25.8.1995 which is impugned in the instant writ petition.
(3.) THE contention of the learned counsel for the petitioners is that at the time when the accommodation in question was declared as malin basti, an objection was filed by the landlord stating therein unequivocally that the building is in a perfect condition and can by no stretch of imagination termed as malin basti. Thus, learned counsel submits that the landlord cannot blow hot and cold simultaneously. THE next point canvassed on behalf of the petitioners is that complete compliance of Rule 17 of the Rules framed under the Act has not been made. According to the report of the Engineer in the year 1989 filed by the landlord, assessment of expenditure has been given which would be incurred in reconstruction as Rs. 1,63,000 and odd which is many folds higher today and there is nothing on record to establish that the landlords have means to incur that expenditure. Besides, the plan has not yet been sanctioned. No finding has been recorded on the basis of the report of Architect that whether the building requires demolition for appropriate estimate of expenditure and how much time would it required for demolition. THE emphasis on compliance of Rule 17 of the Rules by the learned counsel for the petitioners does not appear to be taken into consideration at all by the lower appellate court. Learned counsel for the contesting respondents has disputed each and every arguments of the counsel for the petitioners and submits that the building is absolutely in dilapidated condition which may fall down at any moment. Proceedings were initiated under Section 133, Cr. P.C. and dropped subsequently, therefore, the argument on behalf of the petitioners is that the building is in perfect condition. He further submits that he had never filed any objection to the effect that the building in question is in perfect condition before the Nagar Mahapalika when it was declared as malin basti. THE said application was never brought on record either before the courts below or in the present writ petition, therefore, there is no option but to agree with the submission made by the counsel for the landlord-respondents. Counsel for the petitioners has placed reliance on a decision of this Court in the case of Shyam Lal Gupta v. Ist Additional District Judge, Moradabad and others, 2006 (62) ALR 612. In the aforesaid case, the map of the new construction was not sanctioned by the appropriate local authority and, therefore, the writ petition was disposed of with the direction to the landlord to get the map sanctioned as early as possible and the tenant was directed to vacate the possession within two months from receiving the notice regarding sanction of the map. The landlord was liable to get the construction completed within four months and handover possession to the tenant. Besides, another decision on the question of re-entry under Section 24 of the Act in the event of release application having been allowed under Section 21 (1) (b) of the Act has been cited before me, namely Wasi Ahmad (Shri) v. IInd Additional District Judge, Gorakhpur and another, 2005 (2) ARC 560 : 2005 (4) AWC 3738, controverting the aforesaid arguments. Learned counsel for the petitioners has cited a decision of Ashraf Ali v. IVth Additional District Judge, Saharanpur and others, 1994 (2) ARC 288. On the basis of this decision, learned counsel contends that an estimate of demolition and new construction once submitted by the landlord, mere denial on the part of the tenant is not sufficient to disprove the same unless denial was accompanied by some relevant data. Reliance has also been placed on the decision of Smt. Phoolwati and others v. VIIIth Additional District and Sessions Judge, Muzaffarnagar and another, 2005 (3) AWC 2160. The Court had come to conclusion that filing of sanctioned plan is not mandatory. It is only to be examined by the prescribed authority or the appellate authority that the map has been prepared in conformity with the bye-laws/regulations of local authority /development authority. Reliance has also been placed on a decision of Mohd. Hanif v. IXth Additional District Judge, Muzaffarnagar and another, 2007 (2) ARC 85 : 2007 (3) AWC 2368. The contention raised is that it is not necessary that the building should necessarily be in ruinous condition or fallen down. This view was expressed in the case of Smt. Shanti Devi v. First Additional District Judge, Kanpur, 1983 (1) ARC 21.;