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2018 DIGILAW 1876 (ALL)

Atikur Rahmn v. Shashi Kumar Dubey

2018-08-28

VIVEK KUMAR BIRLA

body2018
JUDGMENT : 1. Heard learned counsel for the petitioner and Sri Arvind Srivastava, learned counsel appearing for the respondents. Present petition has been filed setting aside the order dated 13.7.2018 passed in Execution Case No. 1 of 2016 (Shashi Kumar Dubey vs. Atikur Rahman). 3. It is not in dispute that the release application filed by the plaintiff-respondent no. 1 was dismissed by the trial court. The appeal filed by the plaintiff-respondent was allowed by the lower appellate court and the petition filed against the same was dismissed by this Court vide order dated 26.10.2016 passed in Matters Under Article 227 No. 8713 of 2016 (Atiqurrahman vs. Shri Shashi Kumar Dubey). The aforesaid order is quoted as under:- "Heard Shri R.P. Tiwari, counsel for the petitioner and Shri Amit Saxena and Dilip Goswami, for the respondent. The writ petition arises out of a release application filed under Section 21 (1) (a) and 21 (1) (b) of the Act No. 13 of 1972 by the respondent. The need set up by the landlord was that his son aged about 30 years was in private employment on meagre wages and he wanted to settle his son in confectionery business after reconstruction of the shop in question. It was also alleged that the shop in question was extremely old and in dilapidated condition. The release application was dismissed vide order dated 23.04.2016. This order has been reversed by the appellate court which has allowed the appeal as also the release application. The submission of the learned counsel for the petitioner is that he had earlier filed a suit for injunction as the landlord was forcibly trying to evict him from the shop in question. In this suit the landlord had deposed that he wanted to enhance the rent of the shop in question from Rs. 250/-to Rs. 2000/-. It has been submitted that this statement was filed in the proceedings before the Prescribed Authority. This admission which shows the actual intention of the landlord has not been taken into consideration while passing the impugned appellate order. The second submission made is that the tenant had been running his business from the shop in question for a long time and had earned considerable good will. This aspect has not been considered by the appellate court while allowing the appeal. Learned counsel for the respondent has supported the impugned order. The second submission made is that the tenant had been running his business from the shop in question for a long time and had earned considerable good will. This aspect has not been considered by the appellate court while allowing the appeal. Learned counsel for the respondent has supported the impugned order. I have considered the submissions made by learned counsel for the parties and have perused the record. The appellate court has, upon consideration of the evidence on record, recorded a finding that the need set up by the landlord, was genuine and bonafide. The submission of learned counsel for the petitioner that the admission of the landlord that he wanted to enhance the rent of the shop in question is, in my considered opinion, not relevant. The release application is to be filed setting up a need and the person seeking release has to establish that the need set up by him, is genuine and bonafide. A statement made by the landlord is some other proceedings that he wanted enhancement of the rent, cannot, in any manner, detract from the finding recorded by the courts that the landlords need was genuine and bonafide. On the question of comparative hardship the appellate court has decided against the petitioner on the finding that no effort was made by him to search for alternative accommodation such an effort was neither pleaded nor proved. Even before this Court it has neither been averred nor argued that the tenant had made any attempt to search for alternative accommodation. Therefore, the finding returned on the question of comparative hardship cannot said to be either perverse or illegal. In view of the above discussion, the writ petition fails and is dismissed." 4. When an application under Section 23 of the Act 13 of 1972 was filed for execution, an objection was taken by the defendant-petitioner that the front part of the portion was never let out the petitioner, the same is Nazul land and as such the plaintiff-respondent is not the owner of the aforesaid portion and therefore, the execution case is liable to be rejected. 5. 5. Submission of learned counsel for the petitioner is that in pursuance of the release order the petitioner has vacated the southern portion of the shop in dispute and northern portion is Nazul land over which the petitioner is unauthorized occupant and as such he cannot be evicted as the plaintiff-respondent is not the owner of the aforesaid portion and is not entitled to take possession in the garb of the release application. He further submitted that no proceedings can be entertained by the civil court in view of Section 15 of the U.P. Public Premises Act. The crux of the submission, therefore, is that the impugned order is wholly illegal and the execution proceedings are liable to be set aside. In support of his argument learned counsel for the petitioner has placed reliance on a judgment of Hon'ble Single Judge of this Court in the case of J.P. Singh vs. R.S. Ojha 2014 (6) AWC 6100 that if the order is without jurisdiction its correctness can be assailed at any point of time and insofar as northern portion of the disputed property, which is a Nazul land, cannot be released in favour of the plaintiff-respondent. 6. Per contra, learned counsel for the respondent has supported the impugned order and submitted that admittedly, there was relationship of landlord and tenant between the parties and now this objection is an abuse of process of law at the execution stage. He submitted that even notice is not required under Section 23 of the Act before filing the execution. In support of his argument learned counsel for the respondent has placed reliance on the judgments in the cases of Kanaklata Das and others vs. Naba Kumar Das and others 2018 (2) SCC 352 , Hakim Safdar Khan vs. Prescribed Authority (Munsif), Rampur and others 1988 (1) ARC 245, Smt. Parvati Devi and others vs. Prescribed Authority (Munsif East), Ballia and others 1989 (1) ARC 311 and Dnyandeo Sabaji Naik and another vs. Pradnya Prakash Khadekar and others 2017 (5) SCC 496 . 7. I have considered the rival submissions and have perused the record. 8. On perusal of record I find that in the order of this Court dated 26.10.2016 as already quoted above, the landlord tenant relationship has been admitted by the defendant-petitioner herein and his stand against the release application stood rejected by this Court. 7. I have considered the rival submissions and have perused the record. 8. On perusal of record I find that in the order of this Court dated 26.10.2016 as already quoted above, the landlord tenant relationship has been admitted by the defendant-petitioner herein and his stand against the release application stood rejected by this Court. From perusal of record I also find that the petitioner has applied for freehold of a portion measuring 6 sq. mts., which is being disputed in the present petition i.e. the northern portion of the shop, which was rejected by the competent authority vide order dated 20.1.2017. In the present petition copies of the release application and the judgment of the trial court have not been annexed, however, on perusal of the impugned order I find that in the release application it has been clearly indicated that the release application was filed for the entire accommodation, which also included the northern portion of the shop, which is now being disputed. Apart from that the execution court has already noticed that the boundaries as shown in the P.A. case includes the aforesaid property, wherein upto this Court it has been held that there is landlord tenant relationship. Undisputedly, the freehold application was filed by the petitioner before competent authority in the year 2012 itself but question or objection that is being raised now was never raised before the Prescribed Authority even or before the lower appellate court. 9. In such view of the matter, I do not find any substance in the argument of learned counsel for the petitioner that there does not exist landlord tenant relationship in regard to the northern portion of the shop, which is now being disputed. In the opinion of this Court, so far as present petitioner is concerned, his status as tenant of the landlord-respondent herein is not in dispute as has been upheld by this Court. 10. Present petition has no merit and is accordingly dismissed.