Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This is landlords petition. Petitioner-landlord filed release application under Section 21 (1) (b) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U. P. Act No. XIII of 1972'), registered as P.A Case No. 1 of 1996 on the ground that the shop in dispute was in dilapidated condition being more than 70 years old, hence required demolition and reconstruction. The landlord also alleged that the tenants have not paid rent and taxes since 16.5.1984 and the shop in dispute has been sub let to one Sri Ali Nawaj son of Sri Abdul Wajeed.
3. Original tenant Sri Lateef Ahmad died in 1984 and respondent Nos. 2 and 3 were substituted as his legal heirs and representatives. The tenancy devolved upon respondent Nos. 2 and 3 and they are in occupation of the tenanted accommodation.
4. The respondent-tenants contested the release application by filing written statement denying the plaint allegations. They alleged that the shop in dispute was in sound condition, as such, did not require demolition and reconstructions. They also challenged the Commissioner's report on the ground that it was in regard to other case, as such, it had no relevance and Rule 7 of the Rules framed under U. P. Act No. XIII of 1972 was ignored.
5. In support of their case, the tenants filed affidavits of Mohd. Ahsan (paper No. 31), irshad Ahmad (paper No. 32, Smt. Shakeela (paper Nos. 52 and 61) and Architect's report supported by his affidavit (paper Nos. 39 and 40) before the Prescribed Authority.
6. After hearing the parties and considering the evidence led by them, the Prescribed Authority allowed the release application vide Judgment dated 25.7.1998, holding that from the Commissioner's report submitted in Original Suit No. 332 of 1996, it was proved that the shop in dispute was in dilapidated condition and that the landlord had complied with the provisions of Rule 17 of the Rules framed under U. P. Act No. XIII of 1972.
7. Aggrieved by the judgment dated 25.7.1998, passed by the Prescribed Authority, the respondent-tenants preferred Rent Control Appeal No. 23 of 1998 which was allowed by the appellate court vide impugned Judgment dated 21.11.2000.
8. In the instant writ petition, the petitioner has challenged the impugned order dated 21.11.2000, passed by the appellate court allowing the appeal of the tenants.
9. The contention of counsel for the petitioner is that the release application was rightly allowed by the Prescribed Authority holding that the shop in dispute was in dilapidated condition but the lower appellate court erroneously set aside the judgment of the Prescribed Authority. He contended that the Prescribed Authority rightly relied upon the report of the Architect Engineer of the landlord as the shop in dispute was actually in a dilapidated condition requiring reconstruction after demolition. He urged that the Commission in his report filed in Original Suit No. 332 of 1996 had specifically pointed out that the roof of the shop had the support of wooden karis which were bent at several places and the fixtures of the wooden karis had given way and an iron guarder had supported the karis of the roof. There were various spaces in the roof of the shop which were not covered either by mud or wooden sleeper. The roof was covered by a big polythene. As such, the Prescribed Authority rightly arrived at the conclusion that the roof of the shop was actually broken at several places and to check the drops of water from the roof of the shop, a coverage of polythene was given.
10. Counsel for the petitioner urged that the lower appellate court has erroneously concluded that the shop in dispute was not in a dilapidated condition and that it could be repaired. The lower appellate court has wrongly observed that Rule 17 of the Rules framed under U. P. Act No. XIII of 1972 was not complied with by the landlord.
11. Per contra, counsel for the respondents urged that the approach of the Prescribed Authority was wholly illegal and arbitrary and the lower appellate court rightly held that the shop in dispute was not in a dilapidated condition and provisions of Rule 17 of the Rules framed under U. P. Act No. XIII of 1972 were not complied with by the petitioner.
12. He urged that a perusal of release application dated 5.1.1996, architect's report dated 24.7.1996 and Commissioner's report dated 31.8.1996 in Suit No. 332 of 1996 reveals that the landlord did not come with clean hands and became expert of his own case by declaring the building in dilapidated condition.
13. After hearing counsels for the parties and perusal of record, the points involved for decision in this case are:
(i) Whether building could be released in favour of the landlord holding the same to be in dilapidated condition on release application under Section 21 (1) (b) of U. P. Act No. XIII of 1972?
(ii) Whether it was incumbent upon the landlord, before moving release application, to comply with provisions of Rule 17 of the Rules framed under U. P. Act No. XIII of 1972? If so, did he comply with the same?
(iii) Whether Commissioner's report in another case could be accepted?
(iv) Whether merely on the basis of the fact that the building was 70 years old, it could be held to be in dilapidated condition?
(v) Whether release application of the landlord was supported by cogent evidence?
(vi) Whether time should be fixed by the Court in the case of reconstruction by landlord to ensure re-entry of the tenant?
14. On the issue as to whether building could be released in favour of the landlord holding the same to be in dilapidated condition on release application under Section 21 (1) (b) of U. P. Act No. XIII of 1972, counsel for the respondent-tenants relied upon the decisions in Smt. Cham Devi v. Additional District Judge 1981 ARC 2; Ajit Prasad v. Additional District Judge, 1979 ARC 731 and Smt. Vidyawati v. Additional District Judge 1981 ARC 40, wherein it has been held that mere filing of release application is not sufficient to absolve the landlord to prove the case pleaded by him in accordance with the mandatory requirements of procedure of law and release cannot be permitted unless landlord makes out a case that the disputed accommodation is in dilapidated condition.
15. The aforesaid decisions relied upon by the tenants are not applicable to the facts and circumstances of the instant case for the simple reason that the landlord in the present case has proved beyond doubt that the building in dispute is in dilapidated condition. The Prescribed Authority, after consideration of entire evidence available on record has recorded a finding of fact to this effect, which is as under:
vkosnd fo'kky pan tSu us viuk 'kiFki= dkxt la0 25 esa ;g Li'V :Ik ls dgk gS fd iz'uxr nqdku dh nhokj eas oVhZdy rFkk Mk;ucy dzSDl vk x;s gSa] mldk IykLVj Hkh vR;f/kd iqjkuk gksus ds dkj.k m[kM+ jgk gS] nqdku 70 lky ls Hkh vf/kd iqjkuh cuh gqbZ gS] tks ckslhnk o fxjk: gkyr esa gSA lk{kh us ;g Hkh dgk gS fd iz'uxr nqdku ds Nr dh ij feV~Vh M+yh gq gS vSkj dfM+;ks dh Nr gS dfM+;ks ds cjxs ds fljs xy tkus ds dkj.k nhokj es viuh idM+ NksM+ pqds gSa vSkj Nr dh feV~Vh >M+rh vkSj cjlkr ds fnuksa es Nr Vidrh gSA lk{kh us iz'uxr nqdku ds vkxs fLFkr cjkens dh dM+h;ks ds xy tkus o nhokj o njoktk [kjkc gkus lacf/kr dFku Hkh fd;s gSA vkosnd us y{ke.k nkl c=k o eaxy flag dh 'kiFki= dze'k dkxt ls0 21 o 22 nkf[ky fd;s gSa ftUgksus vius 'kiFki= es vkosnd ds dFku dk iw.kZ leZFku fd;k gSA vkosnd us vius dFku dh iqf'V esa vkj- ,e- ,.M+ ,lksfl;svl vkfdZVsDV dh fjiksZV fnukaad 24-7-96 o jkds'k eksgu xqIrk vkfdZVsDV baftu;j dk 'kiFki= dkxt la[;k 27 o 23 Hkh nkf[ky fd;s gSA bl lk{kh us vius 'kiFki= es ;g dgk gS fd mlus iz'uxr nqdku dk fujh{k.k djus ds mijkUr viuh fjiksZV rS;kj dh gS vkSj iz'uxr nqdku ckslhnk o fxjkm gkyr es o fMysfiMsVsM daM+h'ku esa gS ftldks fxjkdj iqufuZekZ.k djk;k tkuk vko;'d gSA fjiksZV esa nhojks esa dzSDl o Nr dh dfM;ksa dh fLFkfr dks Li'V :Ik ls mfYyf[kr fd;k x;k gSA bl lk{kh us ;g Hkh dgk fd kcs dh HkV~Vh ds /kqa, ls rFkk nqdkuks ls fudyus okyh xSlks ls Hkh nqdku dks uqdlku igqWap jgk gSA rFkk eq[; lM+d ij Hkkjh okguksa ds pyus ls Hkh nqdku dh mi;ksfxrk lekIr gks jgh gSA
16. Thus, it cannot be said that the landlord has not proved that the shop in dispute is in dilapidated condition or that the Prescribed Authority has recorded finding of fact regarding dilapidated condition of the building on no evidence. The Prescribed Authority has considered the evidence of witnesses who have deposed that the shop in dispute is in dilapidated condition and thereafter recorded the finding of fact to that effect.
17. So far as the issues as to whether it was incumbent upon the landlord, before moving release application, to comply with provisions of Rule 17 of the Rules framed under U. P. Act No. XIII of 1972 is concerned, counsel for the respondent-tenants has placed implicit reliance on the decisions in Smt. Sundari Devi v. Ganga Ram 1979 ARC 212 : 1979 AWC 209; Shibbo v. Additional District Judge 1983 (1) ARC 33; Ashraf Ali v. IVth Additional District Judge 1994 (2) ARC 287; Kulwant Rai Jain v. District Judge 1999 (36) ALR 641 : 1999 (3) AWC 2215 and Karamatullah v. District Judge Kanpur 2000 (39) ALR 598 : 2000 (3) AWC 1900, wherein it has been held that compliance of Rule 17 of the Rules framed under U. P. Act No. XIII of 1972 is must.
18. A perusal of the judgment of Prescribed Authority reveals that it has considered this aspect of the case and recorded a finding of fact that the provisions of Rule 17 have been complied with by the landlord. The relevant finding in this regard is as under:
;|fi vkfdZVsDV dh vk[;k esa ;g Li'V ls mfYyf[kr ugh fd uD'kk ckbZykt fu;e ds eqrkfcd gS ijUrq vkosnd us vius 'kiFki= dkxt ls0 25 ds iSjk 14 esa ;g Li'V dgk gS fd fookfnr lEifRr dks fxjkdj iufuZek.k djus dh ckcr dkuquh fu;eks o mifu;eks ds rgr uxjikfydk] ljlkok ds LFkkuh; vf/kdkjh;ka ds le{k uD'kk ikl djkus gsrq izLrqr dj fn;k gSA fo'kkypan us vius fjtkok.M+j 'kiFki= dkxt la0 59 iSjk 6 esa Hkh bl ckr dk Li'V :Ik ls dgk gS fd fu;keks o mifu;eks ds rgr uxjikfydk ds LFkkuh; vf/kdkjh;ks ds le{k uD'kk Hkh ikl djkus gsrq izLrqr dj fn;k gSA ;fn 'kiFki= ;k fjiksZV esa Li'V :Ik ls ckbZykt 'kCn ugha fy[kk gSA rks blls ;g fu'd'kZ ugha fudkyk tk,xk fd uD'kk ckbZykt ds vulkj ugha gSA fu;e o mifu;eks ds rgr dg nsuk gh Ik;kZIr gSA bl izdkj ;gh ekuk tk,xk fd vkosnd vkosnd }kjk tks iqufuZek.k dk izLrkfor uD'kk cuk;k x;k gSA og ckbZykt ds vuqlkj gh cuokdj izLrqr fd;k x;k gSSA lk{; ls ;g iw.Zkr lkfcr gS fd vkosnd }kjk fu;e 17 ;w-ih- ,DV 13@17 izko/kkuksa dk iw.Zkr vuqikyu dj fn;k x;k gS A
19. In view of aforesaid specific finding of fact, the aforesaid decisions relied upon by counsel for the respondent-tenants do not support their case. Rather they support the case of the landlord.
20. As regards the issues as to whether Commissioner's report in another case could be accepted and that merely on the basis of the fact that the building was 70 years old, it could be held to be in dilapidated condition, counsel for the respondent-tenants relied upon the decisions in Amar Nath Tandon v. G.K. Bhargava and Ors. 1987 (1) ARC 297; Sanjai Kumar son of Gokul Prasad v. Sanjai Kumar son of Jwala Prasad 1987 (1) ARC 373 : 1987 (2) AWC 1165 (LB) and Mrs. Biram Devi v. Smt. Satyawati 1986 (1) ARC 150, wherein it has been held that it is well-settled law that Commissioner's report must be proved in accordance with required procedure and by the affidavit of the said authority/person and if there is any objection in this regard then without deciding such objection, it cannot be accepted.
21. Counsel for the respondent-tenants also relied upon the decisions in Virendra Mohan v. Additional District Judge 1981 ARC 22; R. D. Gupta v. Additional District Judge 1977 ARC 7; Om Prakash v. Additional District Judge 1982 (2) ARC 489 and Mohd. Yar Khan v. Irshad Ali Khan 1985 (1) ARC 298, in support of his contention that age factor of a building alone cannot be a ground to hold that the building is in dilapidated condition.
22. The finding of fact recorded by the Prescribed Authority is not based only on the report of the Commissioner nor it has recorded the finding merely because the building is 70 years old. To the contrary, the finding of the Prescribed Authority is based on cogent reasons, which is apparent from the following observations in its judgment:
----Lkk{kh us iz'kuxr nqdku ds vkxs fLFkr cjkens dh dfM;ks ds xy tkus o nhokj o njoktk [kjkc gksus lacaf/kr dFku Hkh fd;s gSaA vkosnd us y{ke.k nkl c=k o eaxy flag dh 'kiFki= dze'k dkxt la0 21 o 22 nkf[ky fd;s x;s gSA ftUgksus vius 'kiFki= es vkosnd ds dFku dk iw.kZ leZFku fd;k gSA vkosnd us vius dFku dk iw.kZ leZFku fd;k gSA vkosnd us vius dFku dh iqf'V es vkj- ,e- ,.M+ ,lksfl;sVl vkfdZVsDV dh fjiksZV fnukad 24-7-96 o jkds'k eksgu xqIrk vkfdZVsDV bathfu;j dk 'kiFki= dze'k% dkxt la0 27 o 23 Hkh nf[ky fd;s gSA bl lk{kh us vius 'kiFki= es ;g dgk gS fd mlus iz'uxr nqdku dk fufj{k.k djus ds mijkUr viuh fjiksZV rS;kj dh gSA vkSj iz'uxr nqdku ckslhnk o fxjkm gkyr esa o fMysfiMsVsM dafM'ku esa gS ftldks fxjkdj iqufuZek.k djk;k tkuk vko;'d gSA fjiksZV essa fnokjks es dzSDl o Nr dh dfM;ksa dh fLFfr dks Li'V :Ik ls mfYyf[kr fd;k x;k gSA bl lk{kh us ;g Hkh dgk gS fd kCks dh HkV~Vh ds /kq,a ls rFkk nqdkuksa ls fudyus okyh xSlks ls Hkh nqdku dks uqdlku igqWp jgk gS rFkk eq[; lMd ij Hkkjh okguksa ds pyu ls Hkh nqdku dh mi;ksfxrk lekIr gks jgh gSA
23. In this view of the matter, the cases relied upon by the counsel for the respondent-tenants are distinguishable on the facts and in the circumstances of the instant case.
24. With regard to issues as to whether release application of the landlord was supported by cogent evidence, counsel for the respondent-tenants has relied upon the decisions in Jokhan v. Additional District Judge 1982 (2) ARC 290 and Krishna Kumar v. Vth Additional District Judge 2000 (38) ALR 541, holding that a case contrary to the pleading and not proved by the cogent and required evidence cannot be decided by the concerned authority merely on guess.
25. From the findings, quoted in the body of the Judgment, it is crystal clear that the Prescribed Authority has not gone beyond pleadings and landlord has proved his case with clarity that the building was in dilapidated condition. That being the position, the aforesaid decisions do not help the tenants.
26. Now coming to the last issue as to whether time should be fixed by the Court in the case of reconstruction by landlord to ensure re-entry of the tenant, suffice it to say that as has been held in Sudarshan Singh v. A.D.J. 1986 (2) ARC 280; Sagir Ahmad v. A.D.J. 1981 ARC 160; Ashok Kumar Bansal v. II A.D.J. 2000 (39) ALR 1 and Anil Kumar Jain v. VIIth A.D.J. 1995 (1) ARC 22 : 1995 (1) AWC 17, it is incumbent on the part of the landlord to give undertaking that the shop shall be constructed within a specific period and will deliver possession of the shop after reconstruction to the tenant.
27. From the perusal of Judgments of the courts below, it is evident that this aspect of the case has not been dealt with.
28. For the reasons stated above, the writ petition succeeds and is allowed. The judgment dated 21.11.2000, passed by the appellate court appended as Annexure-4 to the writ petition is quashed. The respondent-tenants are directed to handover peaceful possession of the shop in dispute to the landlord within a period of one month from today. The petitioner-landlord is also directed to give an undertaking before the Prescribed Authority that he will complete reconstruction work within a period of one year from the date of such undertaking and after reconstruction, will re-deliver the possession of the shop to the respondent-tenants. No order as to costs.