M. P. Mehrotra, J.-

This petition under Article 226 of the Consti­tution of India arises out of the proceedings under Section 21 (1) (b) of the U. P. Act No. XIII of 1972.

The facts, in brief, are these. The petitioners applied for the release of the shop in dispute which is in the tenancy of the respondent No. 2 Alim Uddin. It seems that Mohammad Raza, father of the respondent No. 2, was the original tenant and the application for the release was moved against him. The application was allowed by the Prescribed Authority by his order dated 11.9.1978, a certified copy of which is Enclosure 4 to the petition. There­after, an appeal was filed by the tenant against the said order and same was allowed by the appellate Court by its judgment dated 25.5.1980, a certified copy of which is Enclosure 5 to the petition.

Feeling aggrieved, the petitioners have come up in the instant petition and in support thereof, I have heard Sri U. K. Misra, learned counsel for the petitioners' and in opposition, Sri G. P. Bhargava, learned counsel for the respondent No. 2 has made his submissions.

The learned counsel for the petitioners contended that on the findings recorded by both the Prescribed Authority and the appellate Court, it was clear that the entire building owned by the petitioner No. 1 Phul Chand was dilapidated and required reconstruction and even if the portion of the shop in question was not dilapidated, the same would not entitle it to defeat the release application of the landlords. On the other hand, Sri G. P. Bhargava, learned counsel for the respondent-tenant contended that in as much as the shop in dispute had been found to be in good condition, the release application in respect of the shop is bound to fail. He further contended that the Prescribed Authority and the appellate Court erred in placing reliance on the inspection note of the Prescribed Authority. It was contended that such inspection note could only be utilised as an aid but could not be treated as a substitute for substantive evidence led in the case. The learned counsel further contended that from the evidence and material on record, the Courts below were not justified in holding that the building was in a dilapidated condition or required demolition. Lastly, it was contended that the house was jointly owned and the petitioner No. 1 alone was not its owner and landlord and the release application at his instance without joining the other co-owners was not maintainable. Sri Bhargava cited the following cases in support of his contention:-

1. 1982 Allahabad Rent Cases 124 (Ram Autar v. find Addl. Distt. & Sessions Judge and others).

2. 1982 Allahabad Rent Cases 171 (Smt. Mula v. Babu Ram & others).

3. 1980 Allahabad Rent Cases 149 (Om Prakash Saraswat v. III Addl. District Judge & others).

4. 1980 Allahabad Rent Cases 240 (Pyare Lal v. IV Addl. District Judge & others).

5. 1980 Allahabad Rent Cases 381 (Devi Charan v. III Addl. District Judge & others).

6. 1980 A. L. J. 710 (Gaya Lal v. District Judge).

7. 1981 Allahabad Rent Cases (Short Notes on Cases No. 18 (Gaya Lal alias Gaya Prasad v. District Judge)

8. 1981 Allahabad Rent Cases (Short Notes on cases No. 38 (Virendra Mohan & others v. Addl. District Judge Basti and another).

9. 1979 Allahabad Rent Cases 46 (Israr Ahmad v. District Judge Bijnnr & others).

10. A. I. R. 1969 S. C. 69 (Dhank Mahajan & others v. Rana Chandubha Vakhat Singh & others)

It may be stated that so far short Note on Case No. 18 reported in 1981 Allahabad Rent Cases is concerned it is the same as the one which is fully reported in 1980 A. L. J. 710 (Gaya Lal v. District Judge).

On the other, Sri U. K. Misra, learned counsel for the petitioners placed reliance on the following cases:

1. 1979 A. L. J. 1256 Shyam Lal v. VIth Addl. District Judge.

2. A.I. R. 1976 Allahabad 252,Champa Kunwar v. District Judge, Rampur.

3. A. I. R. 1976 Allahabad 182 Abhinandan Lal v.II Addl. District Judge.

4. 1979 A. W. C. 632 Smt. Chandrawati v. District Judge.

In my view, the finding that the house in question is in a dilapidated Condition requiring demolition and new construction has been returned by both the Courts below. The appellate Court in the impugned order observed as follows:-

"If the shop in question is not in dilapidated condition, the application of the landlord cannot be allowed on the ground that a landlord cannot reconstruct his remaining building, which admittedly is in dilapidated condition, unless the shop in question is released and demolished......... If the shop in question is not in dilapidated condition, I do not think this can be a ground to allow the application as they cannot reconstruct that portion of their building which is admittedly in dangerous and decaying condition, conveniently without demolishing the shop in question."

The Prescribed Authority's finding was that except the frontal half portion of the shop, the rest of the shop was also in a dilapidated condition. Of course, the remaining portion of the house apart from the shop was in a dilapidated condition. From the material on record it is clear that the portion of the shop which is not in a dilapidated condition is a very small portion of the entire building owned by the petitioner No. 1. In this view of the matter, on the basis of the case law of this Court, it has to be held that the shop in dispute should have been released under Section 21 (1) (b) as the entire house had to be demolished and reconstructed afresh. I may make a reference to some of the decided cases as below.

In 1979 A, L. J. 1256 (Supra) S, D. Agrawal J. laid down as follows:

"In Civil Misc. Writ No. 7283 of 1978 decided on 20.7.1979 Smt. Chandrawati v. District Judge Pauri, I have held that even if a part of the building is in dilapidated condition, entire building would be held to be dilapidated. Similar is the view taken by K. C. Agarwal, J. in R. D. Gupta v. Addl. District Judge, 1976 (Rent Control Journal 502 (Allahabad)."

The aforesaid decision in Civil Misc. Writ No. 7283 of 1978 has been reported in 1979 Allahabad Weekly Cases 632. In this connection Sri G. P. Bhargava, learned counsel for the contesting respondent placed reliance on 1982 Allahabad Rent Cases, 124 (Supra). In my opinion, the said decision by N. D. Ojha, J. does not lay down a contrary pronouncement. The said learned Judge observed as under:

"In this regard to the finding recorded by respondent No. 1 that since a portion of the accommodation was in a dilapidated condition the entire building should be treated to be in a dilapidated condition, suffice to say that it cannot be said that it is the true import of Section 21 (1) (b) of the Act. The question will necessarily have to be decided on the facts of each case. It will all depend upon the extent of the accommodation which is in a dilapidated condition vis-a-vis the remaining portion, its topography and the impact of the dilapidated portion being demolished but the remaining portion. Take for example a building which is very strongly built. Subsequently a garrage is added to the. Building which is not so strongly built. The entire building including the garrage is let out as one unit to a tenant. In due course of time it is found that the garrage is in a dilapidated condition. It would be too much for a landlord to urge that since the garrage is in a dilapidated condition the remaining building which is in a very good condition will also be deemed to be in a dilapidated condition. It is for this reason that I am of the view that the question will necessarily have to be decided on the facts of each case."

It will thus be seen that the said learned Judge also took the view that if a portion which is not dilapidated is a small portion of the entire structure and the rest of the building is in a dilapidated condition, then the entire building will have to be treated as dilapidated and the release application can be granted in respect of the entire building including the portion which is not in a dilapi­dated condition. In the facts of the instant case, as I have stated above, it has come in the evidence that the entire house, including half the back portion of the shop in question, is in a dilapidated condition. Accordingly, on the authority of N. D. Ojha, J., the shop in question should have been released on the ground that the portion not in a dilapidated condition was a small part of the entire building, the rest portion of which was admittedly dilapidated.

In this view of the matter, it is clear to me that the appellate Court committed an error of law in rejecting the release application.

Certain cases were cited at the Bar which have dealt with the expression, dilapidated condition and is required for the purpose of demolition and new construction occurring in Section 21 (1) (b) of the Act. I shall notice these cases:-

In 1982 Allahabad Rent Cases 171 (Supra) N. D. Ojha, J. laid down as follows:-

"It was urged by the learned counsel for the petitioner that the finding recorded by the Prescribed Authority and up-held by the District Judge that the building was in a dilapidated condition was erroneous. Suffice it to say, so far as this submission is concerned that the finding in this behalf recorded in the impugned orders is essentially a finding of fact based on an appraisal of evidence and no such error has been pointed out in this finding which may justify interference under Article 226 of the Constitution."

Speaking with respect, there can be little doubt about the correctness of the aforesaid observation. In the facts of the instant case it should be seen that both the Courts below have concurred that except the shop or a portion thereof, the rest of the building owned by the petitioner No. 1 was in a dilapi­dated condition. The same would be basically a finding of facts and no inter­ference is called for in the instant petition. However, on a purely erroneous view of law the lower appellate Court set aside the order passed by the Prescribed Authority, namely, on the view that because the shop was not in a dilapidated condition, therefore, the release application in respect of the shop was bound to fail. I have already discussed the relevant case law on the point and I have shown that two learned Judges of this Court, namely, S. D. Agarwal, J. and K. C. Agarwal, J. have clearly laid down that Section 21 (1), (b) will be attracted even if a portion of the accommodation is not dilapidated and the other portion of the building is dilapidated. I have also shown above that M. D. Ojha, J. had not laid down any different dictum in the aforesaid pro­nouncement, namely, 1982 Allahabad Rent Cases, page 124. The said learned Judge also emphasized that it will depend upon the extent of the dilapidated portion vis-a-vis the rest of the building. Applying the said dictum, I have already found that in the instant case as only the front portion of the shop was found not to be dilapidated, while the rest of the building was held to be dilapidated, it was a case wherein law Section 21(0 (b) of the Act stood attracted. The interference which is being made in the instant petition is not an interference with any finding of fact but an interference which has been necessitated on account of the erroneous view of law which the appellate Court held while interpreting Section 21 (J) (b). In 1981 Allahabad Rent Cases (Short Note 38) it was laid down that the expression 'dilapidated condition has not been defined in the Act. Therefore, it has to be given its ordinary meaning- The term "dilapidated condition as used in Section 21 (1) (b) of the Act only means that the building is only in a state of decaying and parti­cularly in ruinous condition. In my opinion, taking into consideration the finding recorded by the Prescribed Authority and thereafter by the appellate Court this case does not help the contesting respondent.

In 1980 Allahabad Rent Cases, 240, A. N. Varma J. laid down as follows:-

"The word 'dilapidated means in a state of disrepair but it is not necessary that the building should be in a fallen state or ruinous condition. No hard and fast rule can be laid down as to the point at which a building becomes dilapidated and the matter has to be left to the decision of an individual Judge on the facts of each case."

In 1980 Allahabad Rent Cases, 149, Murlidhar, J. observed as follows:

"It is true that dilapidated condition does not mean ruinous fallen down or wholly unsafe but even so there is no hard and fast formula for deciding at what point the condition of the old building can be said to have reached dilapidated state. This must also to some extent depend on the total milieu including the parties and locality. What may be a dilapidated for a high income group in a posh locality may be the usual condition in the poor areas."

It is well known that in a petition under Article 226 of the Constitution, I cannot act as an appellate Court. Looking to the evidence and material on record, it cannot be said that the finding recorded by both the Courts below that the house (apart from the shop in dispute or a portion thereof) was in a dilapidated condition is without any evidence in support thereof. The Pres­cribed Authority has fully- discussed the evidence bearing on this controversy and the appellate Court also did not reverse the said finding. In my view, therefore, no interference is called for in the said finding that the house in question is dilapidated even though the shop in dispute or a part thereof has not been held to be in a dilapidated condition. In this connection, learned counsel for the petitioner placed reliance on A. I. R. 1977, Allahabad page 182, but the proposition is so well understood that it is really not necessary to cite the case law on the point because there can be no dispute about the correct­ness of the aforesaid proposition, namely, that in a writ petition under Article 226 of the Constitution the Court cannot act as an appellate Court and its power to interfere are limited.

Now I go on to deal with the next contention raised by the learned counsel for the contesting respondent, namely, that in the instant case, the inspection note of the Prescribed Authority was not utilised in accordance with law. Sri G. P. Bhargava, learned counsel for the contesting respondent placed reliance on the following cases in this connection:-

(i) 1982 Allahabad Rent Cases 124.

In this case N. D. Ojha, J. has laid down that an authority or Court cannot rely upon its own impressions gathered at the time of inspection where such impressions have not been reduced to writing and have not been incor­porated in the inspection note. In the instant case it cannot be said that the Prescribed Authority in any manner was guided by its impressions and not by what was observed at the spot as incorporated in the inspection note.

(ii) 1980 A. L. J. 710.

In this case A. N. Varma J. laid down that:

"the inspection undertaken by the learned District Judge ought to have been used only as an aid to assess the evidence on record. It could not be automatically wiped out the other evidence existing on the record."

In the instant case it cannot be said that the Prescribed Authority decided the application under Section 21 (1) (b) merely on the basis of his inspection note. The inspection note has been really used as an aid to decide the contro­versy and the evidence on record has been considered.

(iii) In 1981 Allahabad Rent Cases.

(Short Note 38) A. N. Varma J. held that the District Judge was entitled to allow an appeal against the order of the Prescribed Authority on the basis of his own inspection of the building in question.

(iv) In 1979 Allahabad Rent Cases 46. K. C. Agarwal, J. laid down as follows:

"Since the District Judge neither placed any reliance on the report of the expert of the petitioner nor that of respondent No. 3, it was proper that he should have inspected the shop himself and thereafter decided the appeal."

In my view, on the basis of the aforesaid cases it cannot be said that in the facts of the instant case, the Prescribed Authority committed any error of law in utilising his inspection note for deciding the controversy at hand.

Lastly, it was contended that the release application was not maintainable at the instance of only one co-landlord. It was contended that the petitioner

No. 1 was only a co-landlord and in the absence of other co-landlords, the application under Section 21 (1) (b) was not maintainable. In 1980 Allahabad Rent Cases, 381 R. R. Rastogi, J. laid down as follows:

"It would be seen, therefore, that the amendment in the legal position is only to the extent that the proceedings for release can be taken in respect of specified portion of the building under tenancy also but the tenancy has to be determined and the release application is required to be moved by all the landlords, if they are more than one. In other words, even now as a result of transfer of a part of the building under tenancy the splitting up of the tenancy cannot be permitted unless the tenant has agreed to it. On this view of the matter the impugned orders are liable to be quashed."

In the facts of the instant case, it should be seen that the dictum laid down by Rastogi, J. will not be applicable. In the facts of the instant case, it has come in the evidence that by oral partition between the parties the shop in question fell to the share of the petitioner No. 1. Subsequently, the suit for partition was dismissed by the Court on the ground that on the admitted position there had already been a partition between the parties before the filing of the suit for partition and in such circumstances; the suit for partition was not maintainable. It is, therefore, clear that as a result of the admitted par­tition between the parties, the shop in question fell exclusively to the share of petitioner No. 1. The dictum of Rastogi, J. would be applicable only when even after transfer or partition, the tenant remains a tenant of more than one landlords. Where, however, as a result of transfer or partition, the tenanted portion falls to the exclusive share of one co-owner then such former co-owner will be the exclusive landlord of the tenant. This has been the position in the instant case. Accordingly, in my view, this contention of the learned counsel for the contesting respondent cannot be accepted.

Lastly, the learned counsel for the contesting respondent submitted that it was fit case where the controversy should be referred to a larger Bench as there was a conflict in the decided decisions regarding the interpretation of the expression "dilapidated condition. In my view, there has been no such conflict in the various decisions of this Court, some of which I have-noticed above.

It was further submitted that a direction should be issued to the Presiding Officer of the appellate Court below to inspect the site himself. In my view, in the acts of the instant case, this is not necessary because both the Courts below have given a concurrent finding that the entire house except the shop in dispute or a portion thereof, is in a dilapidated condition. The only point on which the Prescribed Authority and the appellate Court differed was as to the legal effect of a situation where a small part of house does not happen to be in a dilapidated condition, but the rest of the house is in a dilapidated condition. The appellate Court thought that in case the disputed shop was not itself dilapidated, the application for release could not be granted even if such shop happened to be a small part or portion of the entire house and the rest of the house was found to be dilapidated. I have held that on the basis of the case law of this Court, this was a wrong view of law while interpreting Section 21 (I) (b). When there is no difference on the findings of fact as recorded by the Prescribed Authority and those which have been recorded by the Appellate Court, I do not see any justification for directing the Presiding Officer or the appellate Court to make a spot inspection.

Lastly, the learned counsel for the contesting respondent prayed that some time be granted to the contesting respondent No. 2 to vacate the shop in dispute and to hand over its peaceful possession to the landlord. Accordingly, while I allow this petition and quash the judgment of the appellate Court annexure 5 to the petition, I direct that three months time shall be granted to the contesting respondent No. 2 to vacate the shop in dispute and hand over its peaceful possession to the landlord-petitioner No. 1.

In the circumstances the parties shall bear their own costs.