Maya Devi (Smt.) and ors. Vs. Nirbhai Kumar and anr.

Maya Devi (Smt.) and ors. vs Nirbhai Kumar and anr.

Disposition Petition allowed Court Allahabad Decided Sep 23, 2004

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Citation: sooperkanoon.com/491487
Court: Allahabad High Court
Judge: S.U. Khan, J.
Decided On: Sep 23, 2004
Case Number: C.M.W.P. No. 14154 of 2001
Subject: Tenancy
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land acquisition is not purely ministerial act to be performed by executive No...

Key legal issue: Tenancy
Outcome / disposition: Petition allowed
Acts & sections: Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 21 and 21(1)

Parties & Advocates

Appellant / Petitioner

Maya Devi (Smt.) and ors.

Respondent

Nirbhai Kumar and anr.

Legal References

Acts: Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 21 and 21(1)
Cases Referred: Anwar Hassan Khan v. Mohd. Shafi
Reported In: 2005(1)ARC56

Excerpt

.....the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. .....under 1st proviso to section 21 (1) of u.p. act no. 13 of 1972 was not served upon the tenant. harveer singh who filed the release application had also purchased the share of his brother sohanveer singh in the shop in dispute through registered sale deed dated 25.10.1986. landlord harveer singh filed release application in the year 1996 i.e. after ten years of purchase of half share of his brother. learned counsel for the petitioners has placed reliance upon authority of this court in anwar hasan khan v. district judge, shahjahanpur, 2000 (1) arc 43, for the proposition that if release application is filed after more than three years from date of purchase then notice under 1st proviso to section 21 (1) of the act is to necessary. the said authority has been approved by the supreme court in the judgment of anwar hassan khan v. mohd. shafi, 2002 scfbrc 149.4. accordingly, writ petition is allowed. judgment and order passed by additional district judge/special judge (e.c. act), ghaziabad dated 6.2.2001 passed in rent control appeal no. 219 of 1999 is set aside and that of the prescribed authority/iiird additional civil judge (s.d.), ghaziabad dated 26.11.1999 passed in p.a. case no. 16 of 1996 is restored.5. however, tenant-respondent is granted time till 30.9.2005 to vacate provided that within one month from today he files an undertaking before the prescribed authority concerned to the effect that on or before 30.9.2005 he will willingly vacate and handover possession of the property in dispute to landlord-petitioners.

Full Judgment

S.U. Khan, J.

1. After setting aside the judgment dated 19.3.2004 through which I had earlier allowed the writ petition exparte, learned Counsel for both the parties were heard on merit.

2. The first point argued by learned Counsel for tenant-respondent is that Harveer Singh and his brother Sohanveer Singh were distinct owners of two portions of the shop in dispute hence release application by Harveer Singh alone under Section 21 of U.P. Act No. 13 of 1972 was not maintainable on the ground that he was at least one of the co-owners. This argument is not substantiated by written statement copy of which is Annexure-2 to the writ petition. In Paragraph 26 of the written statement, the tenant-respondent claimed himself to be the owner of one khand or (portion) of the shop. No such plea of ownership of separate portions of the two brothers i.e. Harveer Singh and Sohanveer Singh was taken in the written statement.

3. Prescribed Authority allowed the release application of the landlord-petitioners. Appellate Court confirmed the findings of Prescribed Authority regarding bona fide need and comparative hardship, However, the appeal was allowed on the ground that notice given by the petitioners-landlord under 1st proviso to Section 21 (1) of U.P. Act No. 13 of 1972 was not served upon the tenant. Harveer Singh who filed the release application had also purchased the share of his brother Sohanveer Singh in the shop in dispute through registered sale deed dated 25.10.1986. Landlord Harveer Singh filed release application in the year 1996 i.e. after ten years of purchase of half share of his brother. Learned Counsel for the petitioners has placed reliance upon authority of this Court in Anwar Hasan Khan v. District Judge, Shahjahanpur, 2000 (1) ARC 43, for the proposition that if release application is filed after more than three years from date of purchase then notice under 1st proviso to Section 21 (1) of the Act is to necessary. The said authority has been approved by the Supreme Court in the judgment of Anwar Hassan Khan v. Mohd. Shafi, 2002 SCFBRC 149.

4. Accordingly, writ petition is allowed. Judgment and order passed by Additional District Judge/Special Judge (E.C. Act), Ghaziabad dated 6.2.2001 passed in rent control appeal No. 219 of 1999 is set aside and that of the Prescribed Authority/IIIrd Additional Civil Judge (S.D.), Ghaziabad dated 26.11.1999 passed in P.A. case No. 16 of 1996 is restored.

5. However, tenant-respondent is granted time till 30.9.2005 to vacate provided that within one month from today he files an undertaking before the Prescribed Authority concerned to the effect that on or before 30.9.2005 he will willingly vacate and handover possession of the property in dispute to landlord-petitioners.

Same Court & Year Allahabad · 2004 Same Parties Maya Devi (Smt.) and ors. vs Nirbhai Kumar and anr. Same Subject Tenancy Same Judge S.U. Khan, J. Acts & Sections Uttar Pradesh Urban Buildings (Regulation of Letting, Rent an...

Tenancy