N.N.Mithal - (1.) AN application for release of accommodation under section 21 of U. P. Act XIII of 1972 having been allowed and the tenant's appeal having failed, the said two orders are being challenged in this petition under Article 226 of the Constitution mainly on the ground that the landlord had failed to comply with the requirements of Rule 17 of the Rules framed under the Act.
(2.) INITIALLY the landlords had filed an application under the provisions of section 21 (1) (a) and (b) both. However, later on the plea regarding personal need was given up and the application was confined to the plea that the building needs demolition and reconstruction. Before an application under section 21 (1) (b) can be allowed, it is necessary that the landlord must satisfy the conditions as are laid down in Rule 17 of the Rules framed under the Act. Rule 17 is in the following terms :- "17. Application for release on the ground of demolition and new constructions-(1) Before allowing an application for release of building under section 21 (1) (b) on the ground that it is required for purposes of demolition and new construction, the prescribed authority shall satisfy itself- (i) that the building requires demolition, (ii) that a proper estimate of expenditure over the proposed demolition and new construction has been prepared, (iii) that a plan has been duly prepared and conforms to the bye-laws or regulations of the local authority or other statutory authority under any law in that behalf for the time being in force, and (iv) that the landlord has the financial capacity for the proposed demolition and new construction." The first condition that the building requires demolition has not been seriously challenged in this petition. It appears that this controversy was live when the matter was pending before the prescribed authority but since the building fell down during the pendency of the proceedings and now it is only a roofless structure, it must be held that condition no. (i) of Rule 17 has been satisfied. Learned counsel for the petitioner has also very candidly not pressed about the non-compliance of the third condition of Rule 17 which requires a plan to be prepared in accordance with the regulations of the local authority.
(3.) THE main stress of Sri S. N. Verma who appeared for the petitioner was that conditions (ii) and (iv) of Rule 17 have not been complied with in accordance with law. THE second condition requires that an estimate of expenditure over the proposed demolition and new construction should have been prepared. What is contended is that although there is proof of estimate of expenditure over reconstruction, there is no proof about the likely expenditure of demolition. According to the learned counsel, it was necessary that an estimate in respect of demolition also should have been prepared alongwith the estimate of reconstruction and this not having been complied with, the respondents were not entitled to the release of the accommodation. With the counter affidavit, estimate prepared by one A. S. Agarwal, Chartered Engineer, has been filed which consists of two parts. THE first is the inspection report and the second is the estimate for cost of construction. Both these have been prepared on the same date and were filed alongwith the affidavit by the said Engineer a few days later. Both in his affidavit as well as inspection report, he has mentioned that cost of demolition and for removing the debris will be approximately Rs.5000/-. THE argument was that this is not an estimate prepared as is required under condition (ii) of Rule 17. Although very strictly speaking, it may be true that an estimate of demolition and estimate of reconstruction should be prepared in a proper way and should not be mentioned only in the inspection report or in any other document, but since there is no rule prescribing the manner in which the estimate has to be prepared and submitted, the Court must take a practical view of the matter. In this case, the affidavit of the Engineer coupled with his inspection note and the estimate of construction certainly complied with the basic requirements of condition (ii) of Rule 17. Both the courts have felt satisfied about this aspect. THE appellate court has also mentioned that since the roof of the building has already fallen down, hardly any amount will be required for demolition of the existing walls and for removal of the debris. THErefore, in the light of the above, it cannot be said that the requirements of the said Rule have not been satisfied. It was next contended that according to condition (iv) of the Rule, it must be established that the landlord has financial capacity for the proposed demolition and new construction. In this respect, the petitioner's contention is that there was no evidence on the record barring the own statement of one of the applicants that he had the financial capacity to meet the likely expenses. Financial capacity in Rule 17 (iv) does not require that the finance necessary for demolition and reconstruction of the building must belong to the landlord or that he had the money ready with him. All that is required is that either he himself should have the means or at least he should have the capacity to raise the necessary funds to meet the expenses needed for demolition and reconstructions, of the building. The word 'capacity' must, therefore, be given a wider and more comprehensive meaning some thing akin to the landlord being in a position to meet the desired object. The Court should only ensure that the claim of the owner in this regard was not merely a device or a ruse to evict the tenant.;