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Allahabad High Court · body

2014 DIGILAW 2077 (ALL)

MUNNA KHAN v. DEVI PRASAD BAJPAI

2014-07-15

PANKAJ MITHAL

body2014
Hon'ble Pankaj Mithal,J. Heard Sri K.P. Tiwari, learned counsel for the petitioner and Sri B.R.J. Pandey, learned counsel for the respondent. The respondent claims himself? to be the owner and the landlord of house No.745/1 and 745/2 which has been given new No. 831 situate in Chamanganj, Sipri Bazar, Jhansi. He filed release application in respect of above house for his bona fide need. The release application has been allowed by the courts below by the impugned judgments and orders dated 19.3.2007 and 4.1.2010. These two orders have been impugned in the present petition by the petitioner tenant. Learned counsel for the petitioner has raised three arguments so as to assail the impugned orders. First the respondent is not the owner and landlord rather petitioner is tenant of one Bhawani Prasad. Secondly, the release application is premature as per Section 21(1-A) of the U.P. Act No.13 of 1972 (hereinafter referred to as the Act). Lastly, respondent has sufficient alternative accommodation with him and therefore, his need for the house in dispute is not at all bona fide. The respondent in the release application has clearly stated that house No.745/1 and 745/2 situate in Chamanganj, Sipri Bazar, Jhansi has been given a new No. 831 and that he is the owner and landlord of the same. The aforesaid houses are adjacent to house Nos.743, 747, 748 and 749. All these houses were the joint family property of the respondent and his family. They have been partitioned vide judgment and order dated 17.8.1998 passed in? suit No.300/98, Raghunandan Prasad Vajpayee Vs. Bhawani Prasad Vajpayee. and the house No.745/1 and 745/2 having new No.831 had fallen to the share of the respondent. The decree of the suit No.300/98 is not disputed and can be questioned in release proceedings.? According to the said decree the aforesaid houses have come to the share of the respondent. Therefore, irrespective of the fact that the petitioner was earlier tenant of Bhawani Prasad, he is now the tenant of the respondent who has stepped into the shoes of the earlier landlord. The petitioner in his written statement accepts that he is the tenant of house No.745/1 and 745/2 new No.831. In view of the above, it is evident that the dispute in the release application is in respect of house No.745/1 and 745/2 new No.831 of which petitioner is admittedly a tenant and respondent the owner and landlord. The petitioner in his written statement accepts that he is the tenant of house No.745/1 and 745/2 new No.831. In view of the above, it is evident that the dispute in the release application is in respect of house No.745/1 and 745/2 new No.831 of which petitioner is admittedly a tenant and respondent the owner and landlord. Thus, the courts below have not committed any error in accepting the relationship of landlord and tenant between the parties holding the respondent to be the owner and landlord on the basis of the decree of the civil court. Section 21 of the Act postulates for the release of a building under Section 21(1) of the Act as well as under Section 21(1-A) of the Act. The provision of Section 21(1) of the Act is of a general nature where the release is sought for the need of the family of the landlord. On the other hand, Section 21(1-A) of the Act envisages release of the building not on any need but on account of a fact that the landlord occupying a public building is likely to vacate it on cessation of his employment. It is in connection with the release of a building under Section 21(1-A) of the Act that a time period for moving an application has been provided. It provides that such an application can be filed within a period of one year before the expected date of cessation of employment. The said time period is not applicable where the release is sought for bona fide need under Section 21(1) of the Act. In the present case, though the petitioner was in service and was due to retire on 31.10.09 whereupon he had to vacate the official accommodation, he has not applied for release of the accommodation under Section 21(1-A) of the Act rather the release application filed by him is simply under Section 21 of the Act on the ground of bona fide need. Therefore, the time period provided under Section 21(1-A) of the Act is not attracted in the present case. Lastly coming to the bona fide need of the respondent, counsel for the petitioner has submitted that petitioner is having two other houses namely house No.743 and 747 Chamanganj, Sipri Bazar, Jhansi and the same are sufficient to satisfy his need. Therefore, the time period provided under Section 21(1-A) of the Act is not attracted in the present case. Lastly coming to the bona fide need of the respondent, counsel for the petitioner has submitted that petitioner is having two other houses namely house No.743 and 747 Chamanganj, Sipri Bazar, Jhansi and the same are sufficient to satisfy his need. The courts below have returned a finding that the said two houses are not available to the respondent in a vacant state. They are in occupation of the tenants Liyakat and Hamid against whom original suit No.58 of 2005 and 56 of 2005 are pending. There is nothing on record to establish that the said two houses have been vacated by the tenants and that the respondent has acquired vacant possession of those houses. In view of above, respondent is not possessed of any alternate accommodation. In the end, counsel for the petitioner submits that house Nos.743 and 747 have been demolished and the aforesaid space in a vacant state is available to the petitioner as his evident from the petitioner's application dated 14.2.2007 which was taken on record.? The aforesaid application clearly states that? house No.743 and 747 have ceased to exist and that it is only a vacant piece of land. Availability of a vacant piece of land is not sufficient to satisfy the residential need of the respondent. The petitioner or the court cannot compel the respondent landlord to construct a new house for his residential purposes when a house already in existence belongs to the respondent. In this view of the matter even if the space of house No.743 and 747 is available to the respondent, it would not satisfy his need. In the above facts and circumstances, I am of the view that the courts below have not committed any error of law in allowing the release application of the respondent landlord. The writ petition is devoid of merit and is dismissed.