# Ram Autar & Ors v. Additional Distt. Judge & Ors

- **Citation:** (2013) 2 ILRA 900
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-29
- **Case number:** Rent Control No. 135 of 2010
- **Bench:** Saaed-Uz-Zaman Siddiqi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-autar-ors-v-additional-distt-judge-ors-42643
- **Pages:** 5

## Headnote

U.P. Act No. 13 of 1972-Section 21(i)-
Release application of land lord-rejected by
both courts below-on ground-legal heir of
land lord are govt. servant-posted out of
city-where as even after death of tenant-his
wife and children residing-held-approach of
both the courts below wholly perverse.

Held: Para-6
Their need to the disputed premises
cannot be denied by mere posting
outside
the
home
town.
Learned
Prescribed Authority has not discussed
or reached to the conclusions as to
when each applicant could attain the
age of superannuation and rejected the
personal requirement on the ground of
assessment as "near future'. It is not
the requirement of law that the
landlords have to permanently live in
the disputed premises.
Case Law discussed:
[(2012) 2 SCC 155]; [2007 (5) SCC 660]; [2000(1)
SCR 77]; [(1998) 2 SCC 1]; [(1979) 1 SCC];
[(1980)1SCC290].
2 All] Ram Autar and Ors. Vs. Additional District Judge & Ors.
901

## Text

900 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
for determining the market value of any
property is the exemplar sale deeds in respect
the very property and if no suitable sale deed
proximate in time to the acquisition of the
land is available, then the Court may fall
back upon the exemplar sale deed of the land
adjacent to the acquired land or of the nearby
villages.

11. The impugned judgment and order
of the reference court does not point out any
error of law in the award of the SLAO or as to
how the compensation awarded is on the
lower side. The reference court has simply
based its award on the sale deed of Devi
Prasad. The said sale deed was never
produced in evidence before it. Thus, without
adducing any evidence to prove that the
compensation offered is inadequate or that it
should be on higher side, the reference court
manifestly erred in law in awarding
compensation on the basis of the sale deed of
Devi Prasad which was not part of the record.

12. The reference court has not
assigned any other reason and has not
followed any other evidence in awarding
compensation according to the aforesaid
sale deed.

13. It may be important to note that
even photostat copies of sale deed are
ordinarily inadmissible in evidence and
can not form the basis for enhancement of
compensation. Therefore, the complete
absence of the sale deed from the record
is fatal and the reference court fell in
grave error in referring to it and basing its
judgment upon it.

14. In view of the aforesaid facts and
circumstances, the impugned, judgment order
and award dated 11th November 1987 passed
by the III Additional District Judge, Jaunpur
in Land Acquisition Case No. 167 of 1985
(Majid and another Vs. Collector, Jaunpur and
another) is set aside.

15. Appeal is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.07.2013

BEFORE
THE HON'BLE SAAED-UZ-ZAMAN SIDDIQI, J.

Rent Control No. 135 of 2010

Ram Autar & Ors.
 ...Petitioners
Versus
Additional Distt. Judge & Ors....Respondents

Counsel for the Petitioners:
Sri Nishant Srivastava, Sri Aftab Alam

Counsel for the Respondents:
C.S.C.

U.P. Act No. 13 of 1972-Section 21(i)-
Release application of land lord-rejected by
both courts below-on ground-legal heir of
land lord are govt. servant-posted out of
city-where as even after death of tenant-his
wife and children residing-held-approach of
both the courts below wholly perverse.

Held: Para-6
Their need to the disputed premises
cannot be denied by mere posting
outside
the
home
town.
Learned
Prescribed Authority has not discussed
or reached to the conclusions as to
when each applicant could attain the
age of superannuation and rejected the
personal requirement on the ground of
assessment as "near future'. It is not
the requirement of law that the
landlords have to permanently live in
the disputed premises.
Case Law discussed:
[(2012) 2 SCC 155]; [2007 (5) SCC 660]; [2000(1)
SCR 77]; [(1998) 2 SCC 1]; [(1979) 1 SCC];
[(1980)1SCC290].
2 All] Ram Autar and Ors. Vs. Additional District Judge & Ors.
901
(Delivered by Hon'ble Saeed-Uz-Zaman
Siddiqi, J.)

1. By means of this writ petition, the
petitioners have prayed for writ in the nature
of certiorari quashing the order dated
05.07.2010 passed by Additional District
Judge, Court No. 9, Faizabad in Misc. Case
No. 01 of 2003 and judgment and order
dated 05.12.2002 passed by Prescribed
Authority/Civil Judge (Junior Division),
Faizabad by which the petitioners' release
application was rejected.

2. I have heard learned counsel for
the petitioners as none appeared on behalf
of the opposite parties.

3. Brief facts of the case are that the
petitioners have filed release application
under Section 21 (i) of U.P.Act No. 13 of
1972 for release of their house No. 114 B,
Mohalla- Sadar Bazar, Pargana- Haveli
Awadh, Tehsil- Sadan, District- Faizabad.
Admittedly, the deceased opposite party
was tenant in it, who has died during the
pendency of the writ petition as opposite
party No. 3 and his heirs have been
substituted who did not appear in spite of
service.

4. The landlords moved application for
release on the ground of personal requirement
which was rejected on the ground that both
the applicants were employed in armed forces
and are posted at their respective place of
posting and they shall not have to live
permanently in Faizabad City in the near
future. Due to this fact, the learned Prescribed
Authority rejected the application for release
and did not consider the question of
comparative hardship.

5.

The
landlord
preferred
Miscellaneous Appeal No. 01/2003 (P.A)
which has also been dismissed. The learned
Appellate court has observed that the tenant
Bache Lal has died who was a patient of
Laprosy and due to his death he has no
personal requirement of the accommodation
in question but the learned Appellate court
held that his widow is living in the disputed
house along with her children and, as such, it
cannot be said that the tenant last his
requirement to occupy the disputed premises.

6. The learned Appellate court did not
consider the case of the parties on merits and
disposed of the appeal in a cursory manner.
He has not at all discussed the bona fide
requirement of the building in question by its
landlord. Learned Prescribed Authority has
held that since the landlords are employee in
the Indian Army, the applicant no. 1 was
posted in Dogra Regiment Centre and
applicant No. 2 was posted in Air Force at
Pune. Both the applicants have pleaded that
during vacations they have to come along
with their families to live in their Home City.
Moreover, there is a family of applicants and
they have no other house in Faizabad city
except the disputed premises. The learned
Prescribed Authority did not consider the
need of the applicants in a pragmatic manner.
The two applicants who were landlords of
the disputed premises have right to visit their
home town. Their need to the disputed
premises cannot be denied by mere posting
outside the home town. Learned Prescribed
Authority has not discussed or reached to the
conclusions as to when each applicant could
attain the age of superannuation and rejected
the personal requirement on the ground of
assessment as "near future'. It is not the
requirement of law that the landlords have to
permanently live in the disputed premises.

7. In Mohd. Ayub and Anr. vs.
Mukesh Chand [(2012) 2 SCC 155], in
which it has been held, as under:-
902 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

"It is well settled the landlord's
requirement need not be a dire necessity. The
court cannot direct the landlord to do a
particular business or imagine that he could
profitably do a particular business rather than
the business he proposes to start. It was
wrong on the part of the District Court to
hold that the appellants' case that their sons
want to start the general merchant business is
a pretence because they are dealing in eggs
and it is not uncommon for a Muslim family
to do the business of non vegetarian food. It
is for the landlord to decide which business
he wants to do. The Court cannot advise him.
Similarly,
length
of
tenancy
of
the
respondent in the circumstances of the case
ought not to have weighed with the courts
below."

8. Hon'ble Apex Court has also relied
upon its earlier decision and has held that the
courts below should not have been swayed
by the fact that the landlords are the
government servants and are posted outside
District Faizabad. The financial position or
the status of the landlords can deny them the
fruits to enjoy their own building. If the
impugned approach, as observed by both the
Courts below, is found to be correct, an
affluent landlord can never get possession of
his premises even, if he proves all his bona
fide requirements.

9. It is also important to note that
there is nothing on record to show that,
during the pendency of this litigation, the
opposite parties made any genuine efforts
to find out any accommodation. In the
ultimate analysis, I am of the view that
the perverse findings of the courts below,
in aspect of the bona fide requirement and
comparative hardship must be set aside.

10. As observed by the Hon'ble
Apex Court in the abovementioned case, I
am mindful of the fact that when the
tenant is asked to move out of the
premises, some hardship is inherent and if
such hardship is to be taken into
consideration then no release applicant
can ever be allowed. The occupation by
the tenant of the building for a long time
cannot be a determinative factor. While
concluding, I rely upon the law laid down
by the Hon'ble Apex Court in Ram
Kumar Barnwal vs. Ram Lakhan
[2007(5) SCC 660], in which it has been
held as under:-

"The High Court, as noted supra,
held that even if it is found that the
findings of the courts below are erroneous
in law the matter has remanded to the
Prescribed Authority as the release
application was filed quarter of century
ago, and bona fide need, and comparative
hardship change by the passage of time.
The writ petition was dismissed granting
liberty to the appellant to file fresh
release application.

It is settled position in law that
subsequent events can be taken note of.
The High Court, even though referred to
the relevance of the subsequent events
erroneously came to the conclusion that
even if the judgment and order passed by
the courts below are erroneous in law, the
matter will have to be remanded to the
Prescribed Authority. There is no such
requirement in law. In fact, after noticing
that the release application was filed
about quarter of century back, it is really
unfortunate that the High Court instead of
deciding the matter dismissed the writ
petition granting liberty to file fresh
release application. In other words,
instead of shortening litigation the High
Court's order would mean unnecessary
prolongation of litigation."
2 All] Ram Autar and Ors. Vs. Additional District Judge & Ors.
903

11. It has also been held in
Ragavendra Kumar vs. Firm Prem
Machinery and Co. [2000(1) SCR 77]
that, "It is settled position of law that the
landlord is best judge of his requirement
for residential or business purpose and he
has got complete freedom in the matter,
(See:
Prativa
Devi
(Smt.)
v.
T.K
Krishnan, [1996] 5 SCC 353. In the case
in hand the plaintiff-landlord wanted
eviction of the tenant from the suit
premises for starting his business as it was
suitable and it cannot be faulted."

12. In Malpe Vishwanath Acharya
and Ors. vs. State of Maharashtra and
Anr. [(1998) 2 SCC 1], in which the
Hon'ble Apex Court has held, as under:-

"Insofar as social legislation, like the
rent control act is concerned, the law must
strike a balance between rival interests
and it should try to be just to all. The law
ought not to be unjust to one and give a
disproportionate benefit or protection to
another section of the society. When there
is shortage of accommodation it is
desirable, nay, necessary that some
protection should be given to the tenants
in order to ensure that they are no
exploited. At the same item such a law
has to be revised periodically so as to
ensure that a disproportionately larger
benefit them the one which was intended
is not given to the tenants. It is not as if
the government does not take remedial
measures to try and offset the effects of
inflation. In order to provide fair wage to
the salaried employees the government
provides for payment of dearness and
other allowances from time to time."

13. I have taken cognizance of the
landmark judgment of the Hon'ble Apex
Court in Bega Begum vs. Abdul Ahad
Khan [(1979) 1 SCC ], in which is has
been held, as under:-

"Moreover, section 11(h) of the Act
uses the words 'reasonable requirement'
which undoubtedly postulate that there
must be an element of need as opposed to
a mere desire or wish. The distinction
between desire and need should doubtless
be kept in mind but not so as to make
even the genuine need as nothing but a
desire as the High Court has done in this
case. It seems to us that the connotation of
the term 'need' or 'requirement' should not
be artificially extended nor its language so
unduly stretched or strained as to make it
impossible or extremely difficult for the
landlord to get a decree for eviction. Such
a course would defeat the very purpose of
the Act which affords the facility of
eviction of the tenant to the landlord on
certain specified grounds. This appears to
us to be the general scheme of all the Rent
Control Acts prevalent in other States in
the country. This Court has considered the
import of the word 'requirement' and
pointed out that it merely connotes that
there should be an element of need".

14. In Kewal Singh vs. Smt.
Lajwanti [(1980) 1 SCC 290], the
Hon'ble Apex Court has held as under;-

"Before
discussing
the
relevant
provisions of the Act it may be necessary
to observe that the Rent Control Act is a
piece of social legislation and is meant
mainly to protect the tenants from
frivolous evictions. At the same time in
order to do justice to the landlords and to
avoid placing such restrictions on their
right to evict the tenant as to destroy their
legal right to property certain salutary
provisions have been made by the
legislature which give relief to the
904 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
landlord. In the absence of such a
legislation a landlord has a common law
right to evict the tenant other in the
determination of the tenancy by efflux of
time or for default in payment of rent or
other grounds after giving notice under
the Transfer of Property Act. This broad
right has been curtailed by The Rent
Control Legislation with a view to give
protection to the tenants having regard to
their genuine and dire needs. While the
rent control legislation has given a
number of facilities to the tenants it
should, not be construed so as to destroy
the limited relief which it seeks to give to
the landlord also. For instance one of the
grounds for eviction which is contained in
almost all the Rent Control Acts in the
country is the question of landlord's
bonafide personal necessity. The concept
of
bonafide
necessity
should
be
meaningfully construed so as to make the
relief granted to the landlord real and
practical. "

15. In view of the discussions as
made above, the landlord has got success
in proving his bona fide requirement and
there is no need to remand back this
matter afresh which will ultimately delay
the disposal of the case and lingering out
unnecessarily.

16. In result, the writ petition is
allowed. Both the orders passed by
learned Prescribed Authority as well as
the learned Appellate Court are set aside
and the release application is allowed,
which stands released in favour of the
landlord-petitioners.
The
learned
Prescribed Authority shall proceed on to
execute the release order in terms of the
release order contained in sub-section 6 of
Section 21 of U.P. Act No. 13 of 1972.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.07.2013

BEFORE
THE HON'BLE SUDHIR KUMAR SAXENA, J.

Habeas Corpus No. 190 of 2013

Shalu Mishra

...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri G.S. Pandey, Sri Himanshu Tiwari

Counsel for the Respondents:
G.A.

Constitution of India, Art. 226- Habeas
corpus
Petition-petitioner
when
marriage solemnized in Arya Samaj
Mandir-girl being less than 17 yearsaccording to High School certificatemore than 17 years-but as per medical
certificate her age found 19 years-if
variation
of
3
years
allowed-found
major-even
being
minor-if
marriage
accepted-only the husband entitled to
get her custody-even before this court
expressed
girl
desire
to
joint
the
company
of
her
husband-petition
allowed-direction issued accordingly.

Held: Para-29 & 30
29. In view of the above decision, it is
apparent
that
detention
of
Shalu
Mishra in Naari Niketan, despite her
objection, merely on the ground that
according to High School certificate
she is less than 18 years although
medical report suggested her age to be
19 years, cannot be treated as legal.
Sessions
Judge
has
himself
while
making
transitory
arrangement
observed that his order shall be subject
to the decision of this writ petition.

30. Taking into consideration the
marriage
certificate,
educational
certificate, medical reports regarding