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Allahabad High Court · body

2014 DIGILAW 2061 (ALL)

Sita Ram v. Shambhu Dayal

2014-07-14

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal, J. – Heard Sri Om Prakash, learned counsel for the petitioner who is now represented by his heirs and legal representatives. Petitioner landlord applied for the release of the house in dispute for the need of his two sons Mohan Lal and Gopal. The said two sons have their own family consisting of their wives and three children each. 2. The release application was allowed by the prescribed authority but in appeal the judgment has been set aside and the release application has been dismissed holding that the need of the petitioner is a mere desire and is not bona fide at all. 3. The first submission of Sri Om Prakash is that in view of Explanation-1 to Section 21 of the U.P. Act No.13 of 1972 (hereinafter referred to as the Act) as the respondent tenant has acquired a residential house, his objection to the release application cannot be considered. 4. I have gone through the judgments and orders of the courts below. The prescribed authority has only mentioned that the respondent tenant is having 1/25 or 1/30 share in the ancestral house. There is no finding from either of the courts that the share in the said house is available to the petitioner in a vacant state. 5. In view of the above the respondent tenant has not acquired any residential accommodation in a vacant state. Therefore, Explanation-1 to Section 21 of the Act would not be attracted. 6. Accordingly, the appellate court has rightly held that Explanation-1 to Section 21 of the Act would not be attracted and the objection of the respondent tenant to the release application cannot be brushed aside. 7. Admittedly, the petitioner is living in a separate house whereas his two sons for whom the need has been set up are living in one of the flats situate in Hasanganj, Mirzapur. The property in dispute is also in the shape of a flat in Hasanganj, Mirzapur. 8. It is admitted that the petitioner has six flats in Hasanganj, Mirzapur. Out of the six flats only three have fallen to the share of the petitioner in partition. In one of the flats his two sons are living whereas in the other the respondent tenant is living. The other third flat is under separate tenancy. 9. 8. It is admitted that the petitioner has six flats in Hasanganj, Mirzapur. Out of the six flats only three have fallen to the share of the petitioner in partition. In one of the flats his two sons are living whereas in the other the respondent tenant is living. The other third flat is under separate tenancy. 9. The appellate court has recorded a finding that during the pendency of the proceedings one of the said flats has been vacated by the tenant and the petitioner has obtained possession thereof. The said flat as such satisfies the need of the petitioner. 10. The need is for the two sons and their families. Now the petitioner has with him two flats in Hasanganj Mirzapur. He can utilize one each for the families of his two sons. It is not the case of the petitioner that all the three flats are situate in such a way that they can be utilized as one unit or as part of any other flat. 11. In view of above, I am of the view that as the petitioner has got possession of one of the flats which has been vacated by one another tenant the appellate court has not erred in dismissing the release application. Accordingly, the writ petition is devoid of merit and is dismissed.