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2016 DIGILAW 3429 (ALL)

BHAGWANTI DEVI v. A. D. J. , COURT NO. 1

2016-10-07

PANKAJ MITHAL

body2016
JUDGMENT Hon’ble Pankaj Mithal, J.—Herd Sri Arvind Srivastava, learned counsel for the petitioners and Sri Atul Dayal, learned counsel for the contesting respondents. 2. The petitioners having lost in both the Courts below in proceedings for release of the two shops in their tenancy have preferred this petition. 3. The first argument of Sri Arvind Srivastava leaned counsel for the petitioners is that the provisions of U.P. Act No. 13 of 1972 are not applicable to the shops in question and, therefore, the release application under Section 21 (1) of the Act is not maintainable. 4. The shops in dispute are part of building No. 59/98-A-8 Mohalla Kodhopur, Ward Dashashawamegh City Varanaasi. The release application was filed by the predecessor in the interest of contesting respondents for need of his son and grand son. In the release application in paragraph 2 and 3 it was clearly stated that the building on the northern side consists of 4 shops, out of which two shops in dispute as described are in the tenancy of the predecessor in the interest of the petitioners since 1970. 5. The petitioners in their objections have not denied the averments made in the aforesaid two paragraphs of the release application rather accepted that they are tenants for the last over 30 years and more. 6. The petitioner No. 11 (now deceased) in his affidavit filed before the Prescribed Authority which has been annexed as annexure-17 to the petition, in paragraph 4 and 5 has categorically stated that they are occupying the shops in dispute as tenants for the last over 30 years and similar averments have been made in paragraph 12 of the said affidavit. 7. The averments made in the objections and the aforesaid affidavit is admission on part of the petitioners that they are tenants for the last over 30 years in the shop in dispute. These documents are of the year 2008 and earlier which means that they admitted that they are tenants prior to 1978 if not since 1970 as alleged by the contesting respondents, though the averments that they are occupying it as tenants since 1970 have not been denied. This clearly proves that the shops are in existence at least since 1978. 8. This clearly proves that the shops are in existence at least since 1978. 8. The ancillary submission is that the contesting respondents have stated that the shops were constructed after the sanction of the map which was sanctioned in 1987-88 therefore, in view of this the provisions of the Act would not be applicable to these shops for the next 40 years. 9. The prescribed authority has considered the above argument in the light of the map on record (Paper No. 50Ga) and has found that the aforesaid map defines the old construction in blue and yellow colour and proposed construction in red colour. The shops in dispute are marked as old constructions and only the varandah infront of them was proposed to be constructed. Accordingly, the constructions which were said to have been raised after the sanction of map do not relates to the shops in dispute which were already in existence. 10. The aforesaid finding is a pure finding of fact and stand corroborated by the admissions of the petitioners as referred to earlier. 11. The other submission in this very connection is that the appellate Court has not dealt with the applicability of the Act. 12. The judgement and order of the appellate Court is of affirmation and need not elaborately deal with each and every finding of the trial Court in affirming those findings. The affirmation of the finding of the first Court without expressing any contrary opinion is sufficient more particularly in the admitted facts of the case to the effect that the shops were in existence since 1970 as alleged or 1978. 13. In view of the aforesaid facts and circumstances of the case, the submission that the Act is not applicable to the shops in dispute and the release application is not maintainable is not sustainable in law and stands rejected. 14. Sri Arvind Srivastava, learned counsel for the petitioners next argued that the contesting respondents have no need for the shops in dispute. 15. The Courts below have concurrently recorded findings of fact in this regard. I find no perversity in the same so as to permit me to touch them in exercise of extra ordinary jurisdiction. 16. 14. Sri Arvind Srivastava, learned counsel for the petitioners next argued that the contesting respondents have no need for the shops in dispute. 15. The Courts below have concurrently recorded findings of fact in this regard. I find no perversity in the same so as to permit me to touch them in exercise of extra ordinary jurisdiction. 16. Lastly, it has been argued by Sri Srivastava that the release application is completely silent with regard to the comparative hardship likely to be suffered by the contesting respondents in the event the application for release is rejected. Therefore, in the absence of the pleadings as aforesaid, the findings of the comparative hardship cannot be sustained. 17. The release application has been filed under Section 21 (1) (a) of the Act. It is settled in law that in deciding a release application it is mandatory upon the Courts to ascertain the bona fide need of the landlord and to weigh the comparative hardship of the landlord and tenant before allowing or disallowing the release application. Therefore, the issue of bona fide need and comparative hardship are both inherent in proceedings for release under Section 21 of the Act. In addition to the above two issues, some other issues may arise depending upon the pleadings of the parties. Therefore, pleadings would be necessary for the purposes of formulating the other issues if any arising for adjudication but not in respect of the issues which are inherent therein except for precisely narrating the facts regarding the need. 18. The Courts below in deciding the release application have not only considered the bona fide need of the contesting respondents but also the comparative hardship of both the parties. 19. Sri Srivastava has relied upon Babu Lal Sahu v. Smt. Tulsa Bai and others, 1986 AWC 317. His Lordship of this Court in the aforesaid decision concerning the release under Section 21 (1) (a) of the Act has held that recording of finding on comparative hardship is an important ingredient of Section 21 (1) (a) of the Act and if there is nothing in the application of the landlord to indicate his hardship and the Prescribed Authority or the appellate Court fails to record any finding in this regard, the order of the eviction would stand vitiated in law. 20. 20. The aforesaid decision nowhere strictly lays down that the release application should necessarily contain pleading regarding comparative hardship. It rather says that if the authorities fail to record finding of comparative hardship and that where there are no pleadings the release application cannot be allowed. It lays down the aforesaid two conditions as essential part of comparative hardship. It gives more weightage to the findings on the issue by the Courts. It is only in the absence of findings by the Court on comparative hardship that a release application cannot be allowed. 21. In the present case, the authorities below have recorded finding of comparative hardship and, therefore, that is sufficient for deciding a release application under Section 21 (1) (a) of the Act irrespective of pleading regarding comparative hardship which is inherent in every case of release under Section 21 of the Act. 22. In view of the aforesaid facts, I find no merit in the petition. 23. In the end, learned counsel for the respondents prays that he may be allowed some reasonable time to vacate the shop in dispute. 24. Sri Dayal leaves it upon the Court to allow some reasonable time to vacate the shops. 25. In view of the above, in the interest of justice, the respondents are allowed to vacate the shops in dispute by 31st March, 2017 subject to furnishing an undertaking on affidavit before the Court below within a period of three weeks from today that they will hand over the peaceful possession of the shop within the time allowed and that they will deposit/tender the entire outstanding amount if any before vacating the same. 26. The petition is dismissed with the above liberty.