Heard Sri Yogesh Kesarwani, learned counsel for the petitioner and Sri M. P. Yadav for opposite party Nos. 3 to 7.
The petitioner has challenged the order dated 4.11.2009 passed by the opposite party No.1 in Rent Appeal No.2 of 2004 (Vijay Kumar Versus Smt. Prakashwati and others) and the order dated 21.4.2004 passed by opposite party No.2 in Misc. Case No.135/2002 (Smt. Prakashwati Versus Vijay Kumar).
The petitioner has challenged the orders of both the Courts and there is concurrent finding about the facts. Petitioner has tried to reliy upon the provision of Section-21 (1) (ii) of the U.P. Act No.13 of 1972 which is quoted as under:-
"21. Proceedings for release of building under occupation of tenant.-(1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely-
(i)..............
(ii) in the case of any residential building, for occupation for business purposes;......."
He says that the Landlord could not have applied for release of the building under this provisions because he has shown his requirement for business purpose. This is barred by the provision, as such, the application could not have been entertained and allowed.
Sri M. P. Yadav, on the other hand, has relied upon Section-21 (1) (a) of the U.P. Act No.13 of 1972 which is quoted as under:
"21. Proceedings for release of building under occupation of tenant.-(1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely-
(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust for the objects of the trust;........"
He says that the application is maintainable. In addition to this argument, he has relied upon explanation (i) appended to this section. Sri Yadav has argued that the word used in the Section is 'Vyavasaya' or profession and provision has been made in sub-section (1) (a) of this Section that release application can be moved for the purpose of residence, profession, trade or calling, which is in commensurate to the word ''Vyavasaya'.
At the moment, the Court is not inclined to go into this aspect of the matter but the second argument of Sri Yadav convinces the Court beyond reasonable doubt. The tenant has two houses for his residential purpose and there is concurrent finding of both the Courts with regard to his possession about two houses. In such a situation, his objection can not be even entertained. The tenant has been living in this house for about a century. There is no evidence on record that he has made any attempt to get any alternate accommodation. The purpose of this Act was protective. It was never intended that a tenant will be allowed to usurp the property of another person for the purpose of ownership.
Property in India although is not a fundamental right but is still a constitutional right and nobody can be allowed to grab the property of somebody on the pretext of any statute or law. All the legislation in this regard are benevolent legislation to help the person in need and to provide shelter to the persons who are homeless but it can not be the intention of the legislation to allow persons who already have their houses to grab the property of another person by twisting and distorting the words used for benevolence by the legislation.
In the present case, justice requires that technical plea, if any, even if capable of interpretation in favour of tenant, should be avoided in totality. I find it a fit case where the petition should be dismissed. However, the Court desists from imposing any cost.
At this stage, Mr. Kesarwani has prayed this client may be granted some time to vacate the premises. For this purpose he has prayed that the Court may take up this case at 2.00 P.M. so that he may consult his client and inform the Court after obtaining instructions on his behalf.
The case has been taken up at 2.00 P.M. Sri Yogesh Kesarwani has made the statement after consulting his client Sri Vijay Kumar alias Babbu on telephone. On behalf of and on instructions of the petitioner Sri Yogesh Kesarwani has made statement that he undertakes to vacate the premises immediately after expiry of six months from today i.e. on July 10, 2012. The petitoiner shall hand over the vacant and clear possession of the property in question without creating any third party rights and also pay the rent upto that date.
The petition is finally dismissed. However, the opposite parties shall have the right to approach this Court by moving simple application if the undertaking is violated.
Order Date :- 11.1.2012/RKM.