Rameshwar Dayal vs Ram Ji Dayal
2017 Latest Caselaw 541 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 2
 

 
Case :- WRIT - A No. - 20548 of 2017
 

 
Petitioner :- Rameshwar Dayal
 
Respondent :- Ram Ji Dayal
 
Counsel for Petitioner :- Ashish Bansal
 

 
Hon'ble Manoj Misra,J.

Heard learned counsel for the petitioner and perused the record.

The present petition has been filed challenging an order dated 20.03.2017 passed by the Additional District and Sessions Judge/F.T.C., Mathura in P.A. Appeal (Civil) No.16 of 2010 by which the appeal preferred by the landlord-respondent against the judgment and order dated 04.12.2010 passed by the Prescribed Authority/Additional Civil Judge (Senior Division), III, Mathura in P.A. Case No.6 of 2004 has been allowed; the order of the Prescribed Authority has been set aside and the release application of the landlord-respondent has been allowed.

A perusal of the record would reveal that the release application was filed by the landlord claiming that the defendant had been in occupation as a tenant of a small betel shop admeasuring 5' x 6' located on the point from where the landlord had ingress and egress to his house, as a result, Rasta available to the landlord-respondent was only 2.5 feet wide causing serious inconvenience to the landlord-respondent inasmuch as he could neither take a vehicle nor a rickshaw to his house and even a fat person would find it difficult to pass through the narrow passage on account of the shop. It was accordingly prayed that the said shop be released in favour of the landlord so that he could remove the shop and establish a proper gate. The release application was contested on various grounds by claiming that the shop had been in existence for last several years and, therefore, the inconvenience, if any, cannot be made a ground for release. It was further claimed that the real intention of the landlord-respondent was to sell off the property in furtherance of which, already an agreement for sale had been entered into.

The Prescribed Authority rejected the release application upon finding that the landlord had colourable motive for drawing the proceeding because earlier he had entered into an agreement for sale of the premises in question and, therefore, it appears, he has no bona fide need inasmuch as the said Rasta had been in existence for last several years since before filing of the release application.

Aggrieved by the rejection of the release application, the landlord-respondent filed an appeal under Section 22 of U.P. Act No.13 of 1972 which has been allowed by the impugned order.

The appellate court found that in so far as the width of the Rasta is concerned, there was no dispute between the parties that Rasta was 2.5 feet wide. It held that the landlord-respondent has right to use the property in the manner in which he so chooses and he cannot be forced to suffer a narrow Rasta all throughout his life just because he has tolerated a narrow Rasta for quite some time. Therefore, it was found that the need to have a proper Rasta with a Gate was bona fide. In so far as the intention of the landlord to transfer the property in question was concerned, the court below observed that not only the agreement for sale was unregistered but a document was also produced to show that the said agreement was rescinded therefore the alleged agreement for sale would not negate the need of the landlord. After holding as above, the appellate court found that the release application was entitled to be allowed. Accordingly, the order passed by the Prescribed Authority was set aside and the release application was allowed.

Smt. Rama Goel Bansal, who has appeared on behalf of the petitioner, has raised a legal point to challenge the order passed by the court below. She has submitted that under Section 21 (1)(a) of U.P. Act No.13 of 1972 the Prescribed Authority could direct release of an accommodation if the accommodation is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust. It has been submitted that the release application was filed for release of the shop merely for the purpose of demolition but not for raising new construction, accordingly the release application was not maintainable. In support of the above contention a decision of this Court in Laxman Singh Rawat Vs Additional District Judge, Bulandshahr 2004 (1) ARC 108 has been cited.

In Laxman Singh Rawat's case (supra), the release application was filed for getting a shop released for converting it into open piece of land after demolition in order to use the open land as Rasta for ingress and egress to and from the petrol pump of the landlord. In that context, this Court had observed that under sub-clause (a) of Section 21 (1) building could be released when it is required either in existing from or after demolition and new construction and not for converting the building into open piece of land, because there was no provision under which building may be released only for demolition.

In the present case, the need which has been shown by the landlord in the release application is to remove the shop and to establish a gate for the house of the landlord-respondent as also to increase width of the ingress and egress passage to the house of the landlord.

A gate is an integral part of a building, residential in particular, because without a gate, an owner/occupier of the premises would feel insecure and may be handicapped in making full use of the building, inasmuch as, without a gate there would be constant invasion to his privacy. Therefore, for beneficial enjoyment of the premises, establishment of a gate becomes essential. Under the circumstances, since in the present release proceeding, to ensure beneficial enjoyment of residential premises, the release of the betel shop was sought for setting up a Gate after removal of the shop, it cannot be said that such need would be out of the purview of proceeding contemplated by Section 21(1)(a) of U.P. Act No.13 of 1972. Accordingly, this Court is of the view that decision of this Court in Laxman Singh Rawat's case would not be applicable to the facts of the present case. The legal submission raised by the learned counsel for the petitioner therefore fails.

At this stage, the learned counsel for the petitioner has submitted that earlier an agreement for sale had been entered into between the landlord-respondent and a third party and, therefore, the intention of the landlord in bringing release proceeding does not appear to be bona fide.

The above aspect has been dealt with by the lower appellate court and the lower appellate court has found that the agreement for sale was not a registered agreement and, therefore, was not admissible in evidence. Moreover, the landlord, by way of paper No.51-Ga, had placed material to suggest that the aforesaid agreement had been rescinded.

Under the circumstances, this Court does not find any good reason to hold that the need of the landlord-respondent was not bona fide or that his intention was to sell off the property. Considering the fact that the ingress and egress path to the landlord's house was only 2.5 feet wide and the shop in question was required to be removed to increase the width of the passage/Rasta and for establishing a gate, the need of the landlord has rightly been held to be bona fide by the lower appellate court.

On the question of comparative hardship, the court below rightly held that a betel shop can be set up at another place but the landlord cannot be made to suffer such inconvenience all throughout his life.

In view of the discussion made above, this Court finds no good reason to interfere with the order impugned and the prayer to set aside the impugned order is rejected.

At this stage, learned counsel for the petitioner prayed for some time to vacate the premises.

Considering the facts and circumstances, this Court is of the view that the interest of justice would be served if the petitioner is allowed time up to 30th September, 2017 to vacate the premises and handover possession to the landlord-respondent by then.

This petition is therefore disposed of by holding that no good ground has been shown to set aside the judgement and order passed by the court below therefore the prayer to set aside the impugned order is rejected. However, it is provided that the petitioner shall not be evicted from the premises in dispute pursuant to the release order till 30th September, 2017 provided the petitioner by 31.05.2017 furnishes an undertaking along with an affidavit in the court concerned that he shall handover vacant and peaceful possession of the premises in question to the landlord-respondent on 1st October, 2017. In addition to above, the petitioner to avail the benefit of this order shall also deposit admitted rent for the period up to 30th September, 2017 by 31.05.2017.

It is made clear that if by 31.05.2017 the aforesaid undertaking is not furnished before the court concerned or the advance rent as mentioned above is not deposited then the release order shall become executable forthwith. It is also made clear that if by 1st October, 2017 the petitioner fails to handover vacant and peaceful possession of the premises in question to the landlord-respondent despite undertaking, it would not only be open to the landlord-respondent to execute the release order but he may also initiate proceeding against the petitioner for contempt of Court.

Order Date :- 12.5.2017

AKShukla/-