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Sayeed Khan v. Alok Goeal And Others - WRIT - A No. 664 of 1989  RD-AH 469 (6 January 2006)
Civil Misc. Writ Petition No. 664 of 1989
Sayeed Khan Versus Alok Goyal and others.
Hon'ble S.U.Khan J
Petitioner is tenant of a shop, on behalf of landlord respondent No.1 Alok Goyal. The shop has got frontage of 7 feet 6 inch and depth of 17 feet 1 inch. Landlord respondent sought for and was granted release of 4 feet by 17 feet 1 inch portion of the shop in dispute for constructing the staircase in release proceedings under section 21 of U.P Act No.13 of 1972. Release application was registered as P.A case No. 14 of 1981 and was allowed by prescribed authority/ Munsif Pilibhit through judgment and order dated 7.5.1984. Appeal filed against the said judgment and order by the tenant petitioner being P.A Appeal No. 21 of 1984 was dismissed by VI Additional District Judge, Pilibhit on 27.10.1988, hence this writ petition.
Landlord had pleaded that he had three adjoining shops including the shop in dispute and he had no stair case to reach at the roof of the shops; that he intended to make constructions on the first floor of the three shops hence he required 4 feet by 17feet 1 inch portion of the shop in dispute to construct the stair case. Rent of the shop in dispute is only Rs. 8.50/- per month. It was also pleaded by the landlord that tenant was carrying on the business of selling mangoes from the shop in dispute which was a seasonal business and even in the portion left in his tenancy occupation after release of the desired portion, tenant would be able to carry on his business although with some difficulty.
One of the three shops was already in possession of the landlord. Tenant asserted that in the shop already in possession of the landlord staircase could be constructed. The courts below after examining the topography of the shops and the plan submitted by the landlord found that as the shop in dispute was situate on one corner and as even otherwise it was more suitable to construct the staircase in a portion of the shop in dispute hence it would not be proper to compel the landlord to construct stair case in the other shop. I do not find any error in the impugned judgments.
It was argued vehemently before the courts below as well as this court that in case release was allowed, tenant would be left with a gallery of 3 feet 6 inch frontage and depth of 17 feet 1 inch which would not be suitable for any business. In case landlord had sought release of the entire shop, this argument would not have been available to the tenant. Seeking release of a portion of the shop in dispute instead of the entire shop fairly established bonafides of the landlord.
Litigation is pending for 25 years. Tenant is enjoying the shop in dispute for virtually no rent hence he should have arranged for alternative shop meanwhile.
Accordingly I do not find least error in the findings of bonafide need and comparative hardship, recorded by the courts below. Writ petition is therefore dismissed.
Tenant petitioner is directed to handover possession of the released portion to the landlord respondent within three months from today failing which landlord may apply for possession under section 23 of the U.P. Act No.13 of 1972. In case within three months possession is not delivered then since after three months till delivery of possession of the released portion tenant shall be liable to pay Rs. 500/- per month rent / damages for use and occupation to the landlord respondent. It if further directed that the portion, which is left in tenancy occupation of the tenant petitioner should carry the same rent, which is of the entire shop i.e. Rs. 8.50/- per month.
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