- (1.) Both these writ petitions arise out of same order i.e., dated 9th October, 2003 passed by Additional District Judge, Court No. 5, Pilibhit i.e., Appellate Authority in P.A. Appeal No. 10 of 1984. Sardar Bulaka Singh (since deceased and substituted by his legal heir/representative namely Sri Paramjeet Singh as respondent No. 1/1) was/is tenant in the premises situated at Mohalla Sunghani (Nakhas), Station Road, Pilibhit. It is a big accommodation having a total area (constructed and unconstructed) as 37159 sq.ft., out of which residential building is in 9634 sq.ft. and rest is open land. The entire accommodation is owned by Sri Kailash Chandra Gupta, petitioner in Writ Petition No. 4818 of 2004 (hereinafter referred to as "first petition") alongwith his brother Subhash Chandra. The petitioner (first petition) filed an application dated 21st October, 1982 under section 21(1) and (2) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter referred to as "Act, 1972") for release of surplus land, area 10356 sq.ft., motor garage, servant quarter and verandah on the ground that he intend to construct an hotel in the said premises for which he has got a plan sanctioned from Municipal Board, Pilibhit vide their letter dated 7th July, 1982.
(2.) The application was contested by respondent-tenant in the first petition by filing written statement [copy whereof is Annexure 3 to the writ petition No. 54009 of 2003 filed by tenant (hereinafter referred to as "second petition")].
(3.) The application was initially rejected by Prescribed Authority vide judgment and order dated 20th February, 1984 where against the landlord filed Rent Control Appeal No. 10/84 which was also dismissed by Appellate Court vide judgment dated 7th December, 1984. The landlord came to this Court in writ petition No. 3908 of 1985 which was allowed vide judgment dated 20th March, 2003. This Court set aside the appellate order and judgment dated 7th December, 1984 and remanded the matter to the Appellate Authority to decide appeal afresh in the light of directions contained in the said judgment. It would be appropriate to reproduce the relevant part of the judgment as under: The explanation to the said sub-section (2) of section 21 of the Act further provides the definition as regards the surplus land appurtenant to the building. On an examination of the above provision, it is apparent that neither the financial status of the landlord nor his bona fide need is required to be examined. The intention of the above provision is clearly to provide facility for construction of either the residential accommodations or buildings for commercial purposes. The release is permissible under the said provision even if the landlord wants to divide the land into plots for sale for the purposes of construction of new buildings. Under the provision it is not necessary that release should be sought for carrying on business for self-alone. The release of surplus land can be obtained even for purpose of commercial activities. Construction of hotel is a commercial purpose. It is not necessary that petitioner himself should run it. It can be let out to any one and also can be run by partnership. To safeguard the interest of the tenant and to obviate from any intentional mischief of the landlord, which he may commit after release by using the land for any purpose other than the purpose for which he sought the release, the Legislature in its wisdom required the landlord to submit an approved plan also. Condition can be imposed that release of surplus land shall not be used for any purpose other than for which the release order has been obtained. So far as the financial status of the landlord is concerned, it is true that if the landlord intends to raise construction it is not necessary that he must be possessing the money with him. It is well known and judicial notice can be taken of the fact that there are so many financial institutions advancing loan to encourage the construction of new residential buildings as well as buildings for commercial purposes. The petitioner had also submitted before the Court that he had some money while the remaining he could arrange by obtaining the loan. Therefore it is clear that the judgment of the learned Appellate Court on this point is based totally on irrelevant considerations. Now the question is as to what is the surplus land as explained in Explanation to section 21(2) of the Act so as to attract the provisions for release of surplus land under the said section. The land appurtenant will be surplus land if it is double the area of land covered by constructions in the tenancy. This can be done by the simple calculation viz. Finding out the plinth area on which the building is constructed and to calculate the open space including the passage. If this open area comes to be more than double of the plinth area of the building, then the land will be deemed to be surplus land. The Appellate Court does not seem to have thoroughly examined the matter in this light. The petitioner had filed the report of the Architect but there is no reference of the report of the Architect in the judgment of the Appellate Court. The Appellate Court has, therefore, to examine the matter and to make calculation in the light of the explanation to find out whether the open land comes within the definition of surplus land as given in the Explanation or not and then to decide the application. Since this is a factual matter to be examined by the First Appellate Court, there is no option but to send he case to the Appellate Authority. The Appellate Court while doing so, besides examining the report of the Architect and sanctioned plan submitted by the petitioner may also get the land measured through the Commissioner for arriving at a correct conclusion. The writ petition succeeds and is allowed. While setting aside the judgment and order dated 7.12.1984 the matter is sent back to the Appellate Authority with the direction to decide the appeal afresh in accordance with law after taking into consideration the observations made in the body of this judgment. Since the matter is an old, the Appellate Authority is directed to dispose of the appeal as expeditiously as possible, preferable within three months from the date of production of a certified copy of this judgment before him.;