# Bhagirath v. Smt. Gyatri Devi and others

- **Citation:** (2001) 2 ILRA 114
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagirath-v-smt-gyatri-devi-and-others-39763
- **Pages:** 7

## Text

2All] Bhagirath V. Smt. Gyatri Devi and others

114
occupational divisional of labour in
society has been largely destroyed due to
the advance of technology. Thus today the
son of a Dhobi does not become a dhobi.
He comes to the city and may become an
electrician or motor mechanic or get
employment in some establishment or
factory, or having got education may
become a lawyer, doctor or engineer.
Similarly the son of Badhai does not now
a days become a badhai. The son of a
Lohar does not become a lohar now a
days. Thus sons are no longer following
the profession of their father and hence
the basis of the caste system has already
been largely destroyed in our country.
However, the caste system is being
artificially propped up by certain vested
interests for vote bank politics etc. which
is very harmful to the country. Of course
these attempts to perpetuate the caste
system is doomed to failure because it is
only artificial and in fact in Indian society
today the basis of the caste system,
namely, the feudal occupational divisional
of labour in society, has already been
largely
destroyed.
All
patriotic
and
modern minded people must oppose the
caste system everywhere so that this evil
can be destroyed as early as possible.

7. In the present case a perusal of the
F.I.R. shows that the allegations are that
certain Yadavs and Brahmins misbehaved
with a Harijan lady and beat up and
insulted her calling her 'chamar'. No doubt
the word 'chamar' is a word denoting a
certain caste, but the said word is also
used in derogatory sense for persons who
are regarded as inferior by the so-called
upper castes. In our opinion since the use
of word 'chamar' is used in a derogatory
sense, it should not be used by members
of the so-called upper castes or O.B.Cs as
it hurts the feelings of Harijans. In our
country nobody's feelings should be hurt
and no one should be treated as inferior.
This is the modern age of democracy in
which equality is a fundamental principle
which must be cherished by all. Thus
whoever regard themselves as superior
merely because they happen to belong to
the so called upper castes are feudal
minded,
backward
persons
whose
mentality must be opposed by persons
with modern mentality.

8. On the facts of the present case
we are not inclined to quash the impugned
F.I.R. However, we direct that the bail
application of the applicant Shanker
Yadav in case crime no. 4 of 2001 under
Section 147/323/504/506 I.P.C read with
section 3(1) 10 S.C. S.T. Act be decided
by the court concerned expeditiously. The
observations in this judgement shall not
influence the Court hearing the bail
application or the trial.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2001

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By the Court

1. Heard Sri Yatindra Sinha,
Advocate on behalf of the tenant -
petitioner and Sri Pankaj Naqvi, Advocate
on behalf of the landlord - respondent nos.
1,2 and 5 (being the widow and sons of
original deceased - landlord Nagdish
Saran Agarwal). The parties have already
exchanged
rejoinder
and
counter
affidavits. Consequently, this writ petition
is being heard and decided finally at the
admission stage.

2. The accommodation in question is
admittedly governed by provisions of
Section 21 of the U.P. Act No. XIII of
1972
(Called
the
'Act').
The
accommodation in question is the first
floor of 12, Zulfiqarganj (Shyamganj),
Bareilly,
of
which
admittedly,
the
petitioner was tenant. The ground floor
accommodation was in the tenancy of one
Satya Prakash.

3. Jagdish Saran Agarwal, landlord
who
was
employed
in
the
Excise
Department, U.P. Government, filed an
application, initially both under sections
21(1)(a) and 21(1-A) of the Act. The
landlord claimed that his need was bona
fide. He was to suffer more hardship than
the tenant if his release application was
rejected. The landlord further claimed
eviction of the tenant on the ground that
he retired from Government Service on
30th June, 1984 and had to live at Bareilly
in a tenanted accommodation, hence the
case was covered under the aforesaid
section 21(1-A) of the Act. The release
application filed by the landlord was
registered as P.A.Case No. 107 of 1984. It
appears that the landlord also filed an
application for release against another
tenant on the ground floor of the
accommodation of the premises and it
was registered as P.A. Case No. 108 of
1984.

4. The petitioner has filed a copy of
judgement and order dated 10.04.88
passed by the VI Addl. District Judge,
Bareilly (Annexure XII to the petition),
which shows that the release application
against Satya Prakash was allowed. Rent
Control Appeal No. 27 of 1988 filed by
the tenant (Satya Prakash) was allowed by
means of the aforementioned judgement
and order dated April 10,1988. Sri Pankaj
Naqvi, Advocate, learned counsel for the
contesting respondent informs that a writ
petition was filed by the landlord in this
2All] Bhagirath V. Smt. Gyatri Devi and others

116
Court and the same is pending disposal
and the facts of the case culminating in
the present proceedings are also it might
has been stated that the Prescribed
Authority allowed the release application
(P.A. Case no. 107 of 1984) vide
judgement and order dated February
2,1993 (Annexure VI to the petition). The
Prescribed Authority decided the case in
favour of the landlord both under Section
21(1)(a) and Section 21(1-A) of the Act.
The tenant being aggrieved filed Rent
Control Appeal No. 31 of 1993 a copy of
the memorandum of appeal is Annexure
VII to the petitioner. During the pendency
of the appeal Jagdish Saran Agarwal,
landlord died and his legal representative
were
substituted.
The
tenant
also
incorporated
para
11A
in
the
memorandum of appeal contending that
sons and daughter of the deceased Jagdish
Saran Agarwal (landlord) had no need of
the accommodation in question as they
are already living in their own built
houses. The memorandum of appeal
clearly indicates that the main thrust of
appeal is to the effect that the case of
landlord, in the fact of the instant case,
did not fall under section 21(1-A) of the
Act because of the landlord possessed
another accommodation. The tenant does
not assail finding of the appellate court
regarding
ancestral
property
of
the
landlord.

5. Commissioner's report paper no.
61 Ga (Annexure Viii to the petition),
shows that the said Commissioner Report
contains description of (house no. 291,
Mohalla Gangapur, Bareilly). The said
Advocate Commissioner vide report dated
January 10, 1986 (with reference to
application no. 40 B - of para 5 (III) the
Advocate Commissioner) found that the
house built of old bricks had fallen roof
and terrace were suppored on beams,
floor was Kachcha no plaster was there on
the walls and in the sketch map at place C
of the room 'A' there is a door. The
Commissioner concluded that the house
was old and in dilapidated condition.

6. Another Commissioner Report
was obtained on 24.7.87 (Annexure IX to
the petition). The said report indicates that
the
petitioner's
counsel
showed
unwillingness the map prepared in respect
to
the
accommodation
in
Mohalla
Gangapur (Annexure 5 to the writ paper
book). During pendency of the appeal, a
Commissioner was again appointed and
he submitted report regarding the houses
which were in possession of two sons of
the landlord namely Uttam Prakash and
Rakesh Kumar, who were living with
their
own
families
separately
and
recorded
that
the
information
was
gathered from Smt. Manju Agarwal wife
of Uttam Prakash and Smt. Niru Agarwal
wife
of
Rakesh
Kumar
Agarwal
(daughter-in-lawa of the landlord). This
Commissioner Report indicates that two
houses at Patel Nagar were in possession
of the two sons of the landlord who had
their own families and were living
separately. In respect of the other
accommodation,
situate
at
Mohalla
Madhowadi, Nai Basti (Annexure XI to
the petition), the Advocate Commissioner
found that Smt. Gayatri Devi wife of Late
Jagdish Saran Agarwal (landlord) was
found in possession.

7. During pendency of the appeal,
the deceased - landlord restricted his
release application under Section 21(1-A)
of the Act. Learned Appellate court found
that Smt. Gyatri Devi wife of Jagdish
Saran Agarwal had purchased open piece
of land (140 Sq.Yd.) from Hulasi and
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

117
Gauri Shankar vide sale deed dated 6.3.60
and 24th July 1961 regarding Madhowadi
accommodation
(282
Sq.Yd.).
It
is
observed that after constructing the house
thereon Uttam Kumar Agarwal and
Rakesh
Kumar
(sons
of
deceasedlandlord-respondent nos.2 and 3 in the
writ petition) were in possession. It was
also held that the other two sons, Sushil
Kumar and Manoj Kumar, respondent
nos. 4 and 5 were living in another house
along with their mother. Smt. Gyatri Devi
built in recent past. Lower Appellate
Court
observed that there was no
difference in the circumtances of the case,
which at the time of filing of prevailed
while the appeal was sending.

8. The Lower Appellate Court
considered contention of both the sides
and dismissed the appeal holding that the
provision of Section 21(1) has been
squarely applied to the fact of the case.

9. The learned counsel for the
petitioner seeks to challenge the judgment
and order of Lower Appellate Court on
the following grounds :- accommodation
in question was used for commercial
purposes whereas the release of the said
accommodation were sought by landlord
for his personal residential need.

10. Finding recorded by court below
show that the building in question was
meant to be used as residential and it was
not built as commercial building and
hence it cannot be said to be commercial
building. Even otherwise the Court below
dealt with this respect and held that the
release application of the landlord was
maintainable.

11. The next submission of the
learned counsel for the petitioner is that
the landlord was in possession of one
room (10 x 10 feet) on the ground floor of
the premises whereas accommodation in
question exists on second floor exist.
According to the tenant, apart from one
room there was latrine and common
courtyard. The landlord, however, denied
existence
of
latrine
and
courtyard.
According to the tenant the ancestral
house at Gangapur was also available.

12. The question whether one room
accommodation on the ground floor in the
premises in question and the other in the
ancestral property actually existed and/or
were adequate and suitable is a question
of fact.

13. The court below had considered
the evidence and came to the conclusion
that these premises could not be said to be
alternative
of
suitable/adequate
accommodation for the landlord. The
court below came to the conclusion that
they were in possession of about sons of
landlord- who had their families and
living therein.

14.

Learned counsel for the
petitioner submitted that the landlords had
sufficient accommodation with them and
hence provision of section 21(1)(a) of the
Act were not applicable to the fact of the
instant case.

15. The petitioner, as mentioned
above, also referred to the P.A. Case No.
108 of 1994 (Jagdish Saran Vs. Satya
Prakash). The judgement passed in the
aforesaid
case
in
appeal
is
under
challenge in writ petition before this
Court. It has no relevance for deciding the
case. So far as ancestral property and at
Mohalla Madhobari are concerned, two
courts below have recorded concurrent
2All] Bhagirath V. Smt. Gyatri Devi and others

118
findings of fact and it is not open for this
court, in exercise of jurisdiction under
Article 226, Constitution of India to
reappraise evidence and interfere with the
judgments of the Courts below.

16. More over, I do not find any
error apparent on the face of record and
come to a conclusion and recorded own
finding.

Learned counsel for the petitioner,
howver, submitted and placed reliance on
the decision in the case of Kalyan Rai
Saxena Vs. II Addl. District Judge,
Bulandshahr and others-1982 ARC page
363. Para 12 of the said judgement reads:

"In our opinion Section 21(1-A) was
enacted for providing an immediate
shelter to a landlord who is left without
any accommodation in consequence of
having to vacate upon cessation of his
employment
a
public
building.
The
legislature appears to have made this
provision to meet the exigency arising out
of the landlord being confronted with the
serious
problem
of
finding
an
accommodation for his residence after
being deprived of the use of public
building which was allotted to him in
consequence of his employment. So that
the landlord might rehabilitate himself
without going through the rigorous and
time consuming process envisaged under
Section 21(1) the legislature thought that
such a landlord to establish that the bona
field
required
the
accommodation
belonging to him or that as between him
and his tenant, he would suffer greater
hardship. It appears that in a contingency
covered
by
Section
21(1-A)
the
legislature presumed that the need of the
landlord would be genuine and that his
requirement
must
necessarily
take
precedence over those of the tenant."

17. Applying the ratio adopted by a
Division Bench in Kalyan Rai Saxena's
Case (Supra), the courts below committed
no error in finding out whether the
accommodations, pointed out by the
tenant in the instant, were actually
available, adequate and suitable. The
mere fact that the landlord possesses some
accommodation,
irrespective
of
its
condition (i.e. whether it is habitable or
not and what is its extent) is not enough to
reject
the
release
application
under
Section 21(1) of the Act.

18. The language employed in
Section
21(1-A)
mandates
that
the
Prescribed
Authority
shall,
on
the
application of a landlord in that behalf,
order the eviction of a tenant from any
building at any time under tenancy, if it is
satisfied that the landlord of such building
was in occupation of a public holding
building for residential purpose, which he
had to vacate on account of the cessation
of his employment.

19. The ratio adopted in the case of
Kalyan Rai Saxena is only to the effect
that Section 21(1-A) will not be available
to the landlord, even if he has to vacate on
account of cessation of employment if he
possesses
an
alternative
residential
accommodation. In turn it makes it clear
that such alternative accommodation must
be an accommodation, which may be
suitable and adequate.

20. The right conferred under
section 21(1-A) to the landlord who is
suffering because of cessation of his
employment contemplated in that section
is a substantive right created by statue and
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

119
such a right should be enforced by the
authorities under the Act as it existed on
the date of deciding release application. It
could not be taken away by subsequent
event as otherwise the averment now to
delay release proceedings so as to create
situation for the landlord to make
arrangement for expending need and
settled grown up sons and daughters.
Cessation of employment for any reason,
whatsoever, does not visit an employee
sufferance of his own accommodation
sufferance of various accounts.

In result, I find no manifest error
apparent on the face of record, the writ
petition lacks merit and is accordingly,
dismissed.

21. Learned
counsel
for
the
petitioner at this stage submitted that he
be allowed to vacate the premises. He
states that he has instructions from his
client. He submits that the petitioner shall
give undertaking before the concerned
Prescribed
Authority
for
peacefully
vacating and handing over the vacant
possession provided that he is granted six
month's time. Learned counsel for the
contesting respondent has no objection to
the same provided the petitioner fulfils
requisite
conditions
and
gives
an
undertaking for compliance of the same.
Consequently, I direct that the petitioner
to
retain
possession
of
the
accommodation in question - subject to
the strict compliance of the following :-

1.
The tenant-petitioner files before
concerned Prescribed Authority on or
before 15th March,2001 an application
along
with
his affidavit giving an
unconditional undertaking to comply with
all the conditions mentioned hereinafter:

2.
Petitioner- tenant shall not be evicted
from the accommodation in his tenancy
for four months i.e. upto 31st July 2001.
Tenant-Petitioner, representative/assignee
etc. claiming through her or otherwise, if
any, shall vacate without objection and
peacefully deliver vacant possession of
the accommodation in question on or
before 31st July 2001 to the landlord or
landlord's nominee/representative (if any,
appointed and intimated by the landlord)
by giving prior advance notice and
notifying to the landlord by Registered
A.D. post (on his last known address or as
may be disclosed in advance by the
landlord in writing before the concerned
Prescribed Authority). Time and date on
which Landlord is to take possession from
the tenant.

3.
Petitioner shall on or before 15th
March 2001 deposit entire amount due
towards rent etc. up to date i.e. entire
arrears of the past, if any, as well as the
rent for the period ending on the 31st July
13, 2001.

4.
Petitioner and everyone claiming
under him undertake not to 'change' or
'damage' or transfer/alienate/assign in any
manner the accommodation in question.

5.
In case Tenant-Petitioner fails to
comply with any of the conditions/or
direction/s
contained
in
this
order,
landlord shall be entitled to evict the
Tenant-Petitioner forthwith from the
accommodation in question by seeking
police force through concerned Prescribe
Authority.

6.
If
there
is
violation
of
the
undertaking of anyone or more of the
conditions contained in this order, the
defaulting party shall pay Rs. 25000/-
2All] Surendra Kumar Singh and another V. State of U.P. and another

120
(Rupees Twenty Five Thousand Only) as
damages to the other party besides
rendering himself liable to be prosecuted
for committing grossest contempt of the
Court.

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By the Court

1. These petitions are based on
common cause of action and since the
relief's
claimed
are
common,
these
petitions were together for convenient
disposal
by
a
common
judgement.
Learned
counsel
appearing
for
the
petitioners in each of these writ petitions
as also Sri S.K. Singh, learned counsel
representing the U.P. Public Service
Commission and the Standing Counsel
representing the State were heard for and
against the relief's claimed in these
petitions.

2. It appears that the U.P.
Subordinate Service Commission had
advertised certain posts including the post
of
Regional
Inspector
(Technical)/Assistant Regional Inspector
(Technical) vide advertisement no. 2/9697. The cut off date for the purpose of
determining the prescribed age limit was
1.7.1996. The last date for submission of
applications was 26.11.1996. But before it
could hold any examination pursuant to
the
said
advertisement
the
U.P.
Subordinate Service Commission was
abolished by U.P. Ordinance No. 16 of
1997 and the posts falling within the
purview of the U.P. Subordinate Services
Commission were brought within the
purview of the U.P. Public Service
Commission. The petitioner was within