- (1.) SUDHIR Narain, J. This writ peti tion is directed against the order dated 1-5-1982 allowing the release application with certain conditions and the order of the appellate authority dated 20-10-1986 dismissing the appeal against the said order.
(2.) BRIEFLY stated, the facts of the case are that Respondent No. 3 filed an applica tion for release of the disputed shop with the allegations that the petitioner is its tenant. There are three shops towards the west of the disputed shop and two shops towards the east of the disputed shop. He wants to construct a market behind the disputed shops and for that purpose a gate is necessary, and until and unless the disputed shop is demolished, he will not be able to construct the market. He sub mitted a plan for constructing the shops, which has been sanctioned' by the municipal authorities. The area of the dis puted shop was about 8 feet and he got vacated another shop of 4 feet while the entire 12 feet area will be utilised as a gate. The petitioner contested the ap plication. He stated that the disputed shop was constructed on the main road and if he is directed to vacate the said shop, he would suffer great hardship as there is no other means of livelihood for him. It was further pleaded that the landlord will not be able to make the constructions as his financial position was not sound. The prescribed authority allowed the applica tion of the landlord but it placed three conditions. The first condition is that the landlord will construct a shop behind the shop of one Chetan tenant within 3 months and will provide such shop to the tenant- petitioner and after he delivers the possession of the said shop, the petitioner will vacate and hand over possession of the said shop to the landlord. The second con dition imposed is that the landlord will pay two years' rent as damages to the petitioner and the third condition is that he would construct the proposed market within a year from the date of the order and in that case he would not seek vacation of the petitioner from the alternative shop which may be given to him for the next 10 years. The petitioner as well as the landlord-respondent both filed separate appeals before the District Judge, Mathura. The landlord was aggrieved against the conditions imposed by the prescribed authority while the petitioner was challenging the order of vacation from the disputed shop. Respondent No. 1 dis missed both the appeals by his order dated 20-10-1986. The landlord-respondent filed CM. Writ Petition No. 2725 of 1987 against this order whereby the conditions were imposed. This Court dismissed the aforesaid writ petition of Respondent No. 3 on 2-2-1987. The tenant-petitioner has filed CM. Writ Petition No. 3739 of 1987 (the present one) against the same order.
(3.) I have heard Sri V. K. Burman, learned counsel for the petitioner and Manish Goel for the respondent. Learned counsel for the petitioner has not assailed finding in regard to the question of bona fide need recorded by both the authorities below but his conten tion is that the conditions as imposed by the prescribed authority are not justifiable in the facts and circumstances of the case. It is contended that Respondent No. 3 has been directed to construct a shop behind the shop of one Chetan, another tenant, and only after such shop is constructed, the petitioner was required to hand over the possession. But his apprehension is that if the disputed shop is demolished and entire market, as given in the map, is not constructed by the landlord, he will be occupying one single shop which will be not in the market area and the newly con structed shop which will be handed over to him will not be facing the main road or any market, and that will prejudice his rights. It is further urged that if the landlord-respondent can construct one shop, he can also construct the entire market as given by him in the sanctioned plan. 7, Admittedly, there is a 4 feet areas between the disputed shop and other shops available for egress and ingress to Respondent No. 3 towards the side where the market area is to be constructed. This space cannot be taken to be sufficient for constructing a market complex as given in the map annexed as Annexure-5 to the counter-affidavit. It is urged that this Court, in C. M. Writ Petition No. 2725-of 1987 had made the following observation while repelling the contention of the present Respondent No. 3 (petitioner in the aforesaid writ petition): ''so far as the argument of the learned counsel that the four feet wide passage is not sufficient for carrying on the building material is concerned, I am unable to accept the aforesaid contention. Every material can be taken from the aforesaid passage. " The above observation was in respect of the construction of one shop only but the Respondent No. 3 is required to con struct 23 shops. Secondly, the contention of the learned counsel for the petitioner is based on the apprehension that respon dent No. 3 may not make any construction and he will be evicted and provided with a shop which will not be facing the road or market and thereby he will be deprived of a suitable shop for carrying on his business. The authorities below had considered this aspect. Respondent No. 3 was directed to construct the shop according to the sanc tioned map within the period of one year. It was found that Respondent No. 3 had got the map sanctioned and his financial status to construct the shop is good. He is dealing with the business of building materials. To avoid this apprehension, it would be appropriate that Respondent No. 3 be directed to submit an undertaking on an affidavit before the prescribed authority, Respondent No. 2, that he would construct the shops within a period of one year from the date he gets posses sion of the disputed shop from the petitioner. Secondly, if Respondent No. 3 fails to construct the shops within one year as referred to above the period of 10 years, as given by the prescribed authority, will be extended for a further time till the con struct ions are completed. 8. Respondent No. 3 in his counter-affidavit stated, in paragraph 4, that the shop behind Chetan-tenant has been con structed which he was required to give to the petitioner. The petitioner shall vacate the disputed shop and will take possession of the said shop within 2 weeks from the date of this order. In case the petitioner does not vacate, as directed above, it will be open for Respondent No. 3 to get the orders passed by the prescribed authority executed. 9. In view of the aforesaid, the present writ petition is partly allowed as to the conditions mentioned in this order. The writ petition in other respects is hereby dismissed. 10. Considering the facts and cir cumstances of the case, the parties shall bear their own costs. Petition partly allowed. .;