# Aligarh Sarrafa Committee, Sarrafa Bazar, Aligarh & Anr v. Smt. Prabha Rani & Ors

- **Citation:** (2022) 11 ILRA 1061
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-04
- **Case number:** Writ-A No. 10347 of 2018
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aligarh-sarrafa-committee-sarrafa-bazar-aligarh-anr-v-smt-prabha-rani-ors-47951
- **Pages:** 11

## Headnote

Civil Law - Constitution of India,1950 -
Article - 226, - U.P. Urban Building
Regulation of Letting, Rent and Eviction
Act, 1972- Section - 21(1)(a) - U.P. Urban
Building Regulation of Letting, Rent and
Eviction Rules, 1972 - Rule - 16(2)(b) -
Tenant's Petition - challenging impugned order
of release & eviction - Question of comparative
hardship & bona fide needs - Landlord moved
application for release & eviction of demised
shop on the ground of bona fide needs -
Landlady's
son
is
under
a
contractual
engagement with a private hospital at Delhi,
being doctor he wants to established a clinic
there at Aligarh - on the other hand, tenant has
property close by, even vacant and available,
where he can shift - it is a well settle law that,
tenant cannot dictate to the landlord, even if he
has other property, the one he choose to
establish his business or profession - the finding
of both court below is well - this court is not
inclined to interfere with the findings, therefore,
on the issue of comparative hardship - thus,
tenant is not entitled to relief in the exercise of
extraordinary jurisdiction under article 226 of
the constitution - petition fails and is dismissed -
directions issued for vacating the demised shop
accordingly.(Para - 31, 32, 33, 34, 36)

Writ Petition is dismissed. (E-11)

List of Cases cited: -

## Text

11 All. Aligarh Sarrafa Committee, Sarrafa Bazar, Aligarh & Anr. Vs. Smt. Prabha Rani & Ors. 1061
Prescribed Authority by the tenant within
the time allowed or the undertaking
violated, the release order shall become
executable forthwith.
----------
(2022) 11 ILRA 1061
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 10347 of 2018

Aligarh Sarrafa Committee, Sarrafa Bazar,
Aligarh & Anr. ...Petitioners
Versus
Smt. Prabha Rani & Ors. ...Respondents

Counsel for the Petitioners:
Sri Pankaj Agarwal

Counsel for the Respondents:
Ms. Akansha Gaur, Kashi Naresh Mishra

Civil Law - Constitution of India,1950 -
Article - 226, - U.P. Urban Building
Regulation of Letting, Rent and Eviction
Act, 1972- Section - 21(1)(a) - U.P. Urban
Building Regulation of Letting, Rent and
Eviction Rules, 1972 - Rule - 16(2)(b) -
Tenant's Petition - challenging impugned order
of release & eviction - Question of comparative
hardship & bona fide needs - Landlord moved
application for release & eviction of demised
shop on the ground of bona fide needs -
Landlady's
son
is
under
a
contractual
engagement with a private hospital at Delhi,
being doctor he wants to established a clinic
there at Aligarh - on the other hand, tenant has
property close by, even vacant and available,
where he can shift - it is a well settle law that,
tenant cannot dictate to the landlord, even if he
has other property, the one he choose to
establish his business or profession - the finding
of both court below is well - this court is not
inclined to interfere with the findings, therefore,
on the issue of comparative hardship - thus,
tenant is not entitled to relief in the exercise of
extraordinary jurisdiction under article 226 of
the constitution - petition fails and is dismissed -
directions issued for vacating the demised shop
accordingly.(Para - 31, 32, 33, 34, 36)

Writ Petition is dismissed. (E-11)

List of Cases cited: -

1. Smt. Kanta & ors. Vs Additional District
Judge, Lucknow & ors., 2015 (1) ARC 459 (LB)

2. Bhagwat Prasad Agrawal Vs Radha Raman
Agrawal, 2015 (2) ARC 370

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a tenants' petition against an
order of release passed under Section
21(1)(a) of The Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (U.P. Act No. 13 of
1972)
(for
short,
''the
Act')
passed
concurrently by the two Authorities below.

2. The two petitioners, who are
effectively one, are tenants in a shop,
situate
at
Sarrafa
Bazar,
Aligarh,
admeasuring 15 square meters, of which
Smt. Prabha Rani, respondent no.1 to this
petition, is the landlady. The shop aforesaid
is held by the petitioners at a monthly rent
of Rs.50/-. The said shop shall hereinafter
be called ''the demised shop'.

3. The facts giving rise to this petition
are that Smt. Pratibha Rani, respondent
no.1, who shall hereinafter be referred to as
the
landlady,
instituted
the
present
proceedings under Section 21(1)(a) of the
Act with the case that she purchased two
shops, admeasuring 15 square meters,
situate at Sarrafa Bazar, Aligarh, through a
registered sale deed dated 31.10.1995. Out
of the two shops, the smaller one, which
has a door of one meter, is in the
occupation of the landlady's husband,
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
Manohar Lal Gupta, who carries on the
business of a jeweller therein. The other
shop, that has a door of two meters wide, is
in the tenancy occupation of the Aligarh
Sarrafa Committee since the time of the
previous owner and landlord, at the
monthly
rent,
already
mentioned
hereinabove. It is the said shop, that has
already been introduced hereinbefore as the
demised
shop.
The
Aligarh
Sarrafa
Committee, Sarrafa Bazar, Aligarh is a
registered body, which has a triennial
election and is represented by its Secretary.
The Secretary of the aforesaid Sarrafa
Committee is responsible for all actions of
the Body and is competent to prosecute and
defend legal proceedings on its behalf. The
Aligarh
Sarrafa
Committee
shall
hereinafter be referred to as 'the tenant'. It
is the landlady's case that the tenant has a
weighbridge (dharamkanta) installed in the
demised shop. For the present, the
weighbridge is not in use. Every shop in the
Sarrafa Bazar is now equipped with
electronic weighing machines.

4. The tenant, apart from the demised
shop, has another at Rafatganj, located at a
short distance from the former. The tenant
is the owner of the latter shop, where also a
weighbridge is installed. The shop at
Rafatganj also by and large remains closed.
In addition, the tenant has still another
shop, located at a distance of about 20
yards in the Surajbhan Market, Purani
Kotwali, Aligarh, where too a weighbridge
is installed. Whatever use the tenant has for
a weighbridge is sufficiently met by the one
that is housed in the shop that the tenant
has at the Surajbhan Market. The Surajbhan
Market is also part of the Sarrafa Bazar
and, therefore, good for the requirements of
the tenant. The tenant has one more shop,
located near the Pyaun, that is situate
opposite Kunji Lal's shop. The said shop is
vacant and lying locked. The tenant is the
owner of the said shop. Apart from all these
three shops, barely 50 yards away from the
demised shop, the tenant has a property
known as 'Atithi Grih', situate at Purani
Kotwali, Sarrafa Bazar. The said property
is a mere 50 yards away from the demised
shop. This property is a four storeyed
building and apart from the occupancy on
the ground floor, all floors of the building
are lying vacant. The tenant can easily
establish its weighbridge in any of these
properties. It must be remarked here that
the
way
the
landlady
has
received
assistance in the drafting of her application,
it appears to be the result of inexperience or
poor forensic talent. This Court says so
because the first part of the application, in a
case under Section 21(1)(a) of the Act,
ought
to
carry
pleadings
about
the
landlord/landlady's bona fide need. The
pleadings, that have just now been
mentioned, seem to refer to the facts that
are relevant about the issue of comparative
hardship, which should come next after the
pleadings related to the bona fide need.
Nevertheless, despite the inartistic manner
in which the pleadings have been drafted,
do not detract from the merits of the
landlady's case, because the relevant
averments are there, may be in unhappy
sequence.

5. It is then averred by the landlady
that she applied for release of the demised
shop earlier, setting up the bona fide need
that her husband required it. The aforesaid
case being U.P. U.B. Case No. 56 of 1998
was rejected by the Prescribed Authority
vide judgment and order dated 08.12.2007.
The judgment was affirmed in appeal on
18.01.2011. The landlady's case is that her
son Prashant Gupta, who is a Doctor, has
earned his Postgraduate Degree (MD) in
Ophthalmology from the All India Institute
11 All. Aligarh Sarrafa Committee, Sarrafa Bazar, Aligarh & Anr. Vs. Smt. Prabha Rani & Ors. 1063
of Medical Sciences, New Delhi and for the
time being, employed temporarily at the
Sanjay
Gandhi
Memorial
Hospital,
Mangolpuri, New Delhi as a Senior
Resident. Prashant Gupta's wife, Smt.
Savita Agrawal has earned her MD Degree
in Pathology from the S.N. Medical
College, Agra in the year 2008 and she too
is temporarily working at New Delhi.
Prashant Gupta is the only son of the
landlady and wants to establish his clinic at
Aligarh, utilizing the demised shop for the
purpose. It is averred that there is no other
doctor's clinic in the area. The clinic would
offer stable employment to the landlady's
son, where the husband and wife wife can
practice together.

6. The landlady's case specifically
urged is that she bona fide needs the
demised
shop
for
her
son's
clinic,
particularly so as the landlady and her
husband are moving towards old age and
require their son's presence close at hand.
In the event the demised shop is released,
she would utilize it only for her son's clinic.
She would not let out the shop again. It is
averred at the tail-end of the application in
a
formal
averment
that
comparative
hardship lies in favour of the landlady and
against the tenant.

7. The tenant filed its written
statement, denying the landlady's case. It
was, however, not denied that the landlady
owns two shops, one of which is in her
husband's occupation and further that her
husband is engaged in business as a
jeweller. It is also not disputed that the
demised shop is held by the tenant on a
monthly rent of Rs.50/-, where it has its
weighbridge. It has been objected to by the
tenant that the landlady has not filed any
map along with her application. It is also
pointed out by the tenant that Vijay
Agrawal is the President of the Sarrafa
Committee, Aligarh and Vinod Kumar is
the Secretary. It is then pleaded on behalf
of the tenant that the existence of the
properties in Paragraph No. 3 is not
admitted as pleaded, but this Court must
remark that in Paragraph No. 4 of the
written statement, the existence of the four
properties, that the landlady has alleged in
Paragraph No. 3 of the release application,
has not been denied. What has been said is
that those properties are not available to the
tenant, because of non-vacancy. It is also
asserted that it is incorrect to say that the
weighbridge in the demised shop is nonfunctional.

8. It is also the tenant's case that the
earlier release application, that the landlady
had brought under Section 21(1)(a) of the
Act on the grounds of her husband's
requirement, has been rejected. The tenant
has not denied the fact that the landlady has
one son i.e. Prashant Gupta, but it is
asserted that he is employed with the
Sanjay
Gandhi
Memorial
Hospital,
Mangolpuri, New Delhi. It has further been
said that the landlady is put to strict proof
about her son's employment and that of his
wife at New Delhi. It is the tenant's case
that the landlady has not come to Court
with clean hands. The landlady has not
given out the details of her family
members, their ages, status, business nor
has she furnished the particulars of other
properties owned by the members of her
family at Aligarh or away from Aligarh. It
is also pleaded that the dimensions of the
shops purchased through the sale deed
dated 31.10.1995 has not been given out.

9. It is the tenant's case that since the
year 1994, the landlady has dragged the
tenant to Court in baseless litigation. The
landlady instituted Suit No. 457 of 1995,
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
which was dismissed on 30.09.1999.
Another S.C.C. Suit No. 28 of 1995 was
instituted by the landlady, which was
dismissed on 06.02.1998. The first release
application being U.P. U.B. Case No. 56 of
1998 was dismissed on 09.02.2007 and the
appeal therefrom being U.P. U.B. Appeal
No. 1 of
2007
was
dismissed
on
18.01.2011.

10. It is the tenant's case that the
landlady has no bona fide need. She has a
son and four daughters, all of whom are
doctors. All the children after earning their
MBBS Degrees have also earned MD
Degrees. They are well settled. The son is
married and his wife is also a doctor, who
is employed at Delhi for the past number of
years. The landlady's son and his wife have
no intentions of coming back to Aligarh,
and settling down or establishing a clinic at
Aligarh. The tenant has also asserted that
the landlady and her husband live in a
house which they own, situate at Gandhi
Nagar at Aligarh. The landlady's husband is
quite old. He is said to be above 60 years. It
is pleaded that the landlady's husband, apart
from his business as a jeweller, is also into
money lending, besides working as a
broker. The landlady wants to enhance the
rent payable by the tenant.

11. It is asserted that the landlady's
case that after release of the demised shop,
she would not let it out, is not true, because
once released, she would sell off the
demised shop and the adjoining one too. In
their old age, the landlady and her husband
would move out of Aligarh to Delhi and
live with their son and daughter-in-law. It
is further pleaded by the tenant that the
demised shop is not suitable either for
Prashant Gupta or his wife and the two
together cannot establish their clinic or
nursing home or Pathology Laboratory in a
shop that small. The tenant has also said
that the landlady owns 30 bighas (kachcha)
of agricultural land in Village Bhinauli and
one big residential house at Gandhi Nagar,
Aligarh. That apart, she has a property in
Delhi. Her bona fide need does not exist.
The tenant has no other property in a
vacant state and, therefore, it is not possible
to move the weighbridge installed in the
demised shop to any other premises.
Interestingly, the tenant has also pleaded in
Paragraph No. 23 of the written statement
that Dr. Asha Rathi, Dr. G.M. Rathi, Dr.
M.C. Garg, Dr. Mahesh Garg and Dr.
Dinesh Chandra have their clinics in the
vicinity.

12. The landlady filed a replication,
where her pleaded in the release application
was
reiterated
and
elucidated
while
traversing the tenant's objections.

13. The landlady filed in evidence,
her own affidavit, Paper No. 17-Ga, the
affidavit of her son Dr. Prashant Gupta,
Paper No. 18-Ga, an affidavit of one Satya
Prakash Sharma, Paper No. 19-Ga, an
affidavit of Hari Mohan Verma, Paper No.
20-Ga and still another affidavit of Rajbabu
Verma, Paper No. 34-Ga. In the rejoinder,
the landlady filed her own affidavit, Paper
No. 35-Ga, that of Raghuvar Dayal Gupta,
Paper No. 36-Ga, the affidavit of Ravindra
Kumar Verma, Paper No. 41-Ga, besides
the affidavit of Prabha Rani together with
two photographs. Along with the affidavit,
Paper No. 6-Ga, a photostat copy of the
sale deed dated 01.11.1995, a photostat
copy of Prashant Gupta's MD Degree and a
photostat copy of the certificate relating to
Savita Agrawal issued by the Dr. B.R.
Ambedkar Medical University, Agra, were
brought on record. A further affidavit,
Paper No. 43-Ga has been filed by the
landlady, annexing with it a photostat copy
11 All. Aligarh Sarrafa Committee, Sarrafa Bazar, Aligarh & Anr. Vs. Smt. Prabha Rani & Ors. 1065
of fellowship certificate from Shroff Eye
Centre, New Delhi and an office order
dated 14.11.2014 from the Uttar Pradesh
Rural Institute of Medical Sciences and
Research, Saifai, Etawah.

14. The tenant in its evidence has
produced the affidavit bearing Paper No.
28-Ga
from
the
Secretary,
Sarrafa
Committee,
Vinod
Kumar,
another
affidavit bearing Paper No. 29-Ga from
Vinod
Kumar,
still
another
affidavit
bearing Paper No. 30-Ga from Pradeep
Agrawal and also an affidavit from the
President,
Sarrafa
Committee,
Vijay
Agrawal (Paper No. 31-Ga), annexing with
it the judgment dated 09.02.2007 in U.P.
U.B. Case No. 56 of 1998, judgment dated
18.01.2011 in U.P. U.B. Appeal No. 1 of
2007,
three
rent
receipts
and
two
photographs. No documentary evidence,
besides the above, was filed on behalf of
the tenant.

15. The Courts below have found for
the landlady on both counts of bona fide
need and comparative hardship and granted
the release application.

16. Aggrieved, the present writ
petition has been instituted by the tenant.

17. Heard Mr. Pankaj Agarwal,
learned Counsel for the tenant and Ms.
Akanksha Gaur, learned Counsel for the
landlady.

18. It is argued by Mr. Pankaj
Agarwal, learned Counsel for the tenant
that
the
landlady's
son's
need
for
establishing an Ophthalmology Clinic at
Aligarh is without basis and flimsy. Her
son Prashant Gupta along with his wife and
children is a permanent resident of Delhi
and working there. It is argued that there is
nothing on record to show that the
landlady's son has any intention to shift to
Aligarh and set up his clinic, forsaking his
roaring practice at Delhi. Learned Counsel
for the tenant has drawn the Court's
attention to the copy of the Voter ID Card
and the other documents filed through the
list bearing Paper No. 18-Ga, which show
that the landlady's son is permanently
residing at Delhi. It is argued that the
Courts below ignoring all this evidence has
allowed the release application on the
ground alone that the landlord is the best
judge of his requirement for the premises
that he owns and the tenant cannot dictate
terms to the landlord.

19. Ms. Akanksha Gaur, learned
Counsel for the landlady, on the other hand,
has refuted the submissions of Mr. Pankaj
Agarwal. She has pointed out that the two
Courts below have concurrently found the
landlady's need to be bona fide and
answered on the issue of comparative
hardship also against the tenant, taking a
plausible view of the matter, upon
consideration of all evidence on record. It
is not a case of non-consideration of
material evidence. It is urged by the learned
Counsel that there is no occasion for this
Court to interfere with the concurrent
findings of fact recorded by the two Courts
below. It is particularly submitted that the
tenant's case about the landlady's son being
not minded to shift to Aligarh from Delhi,
because he is well settled there, is without
basis. Elucidating that submission of hers,
learned Counsel points out that Prashant
Gupta was first working with the Shroff
Eye Centre, New Delhi. He then moved to
the Sanjay Gandhi Memorial Hospital,
Mangolpuri, New Delhi as a Senior
Resident and thereafter to the Sitapur Eye
Hospital. However, for the present, due to
the difficulties faced by his aged parents,
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
domiciled at Aligarh, the landlady's son has
established a clinic at Aligarh. It is also
emphasized that Dr. Prashant Gupta was in
private employment, until he moved to
Aligarh and was not employed in any
government service. He has shifted to
Aligarh in the year 2020, pending the writ
petition and established his clinic in rented
premises, admeasuring 2x5 square meters.
The learned Counsel for the landlady points
out that a copy of the rent agreement
executed on 28.09.2020 between Dr.
Prashant Gupta and his landlord, Jitendra
Kumar son of Jauhari Mal Jain, is annexed
as Annexure No. 1 to the counter affidavit.

20. It is also pointed out that Dr.
Prashant Gupta is differently abled with a
52% permanent disability, known as Post
Polio Residual Paralysis of the left lower
limb, according to the said certificate,
issued in this behalf by the Chief Medical
Officer, Aligarh. It is for the said reason
also that the landlady wants her son to be
close by, besides her own difficulties of old
age and that of her aging husband. It must
be mentioned here that these documents
were not on record before the Courts
below.

21. The handicap certificate is of the
year 2004 and may not be looked into by
this Court for the reason that it was not
filed before the Courts below. However, so
far as the rent agreement is concerned, it is
evidence of a supervening event that
happened pending this petition. Possibly,
the said agreement could never have been
filed before the Courts below, as it never
existed then. The document is related to the
changing circumstances of parties and the
cause of action in an application for release
under Section 21(1)(a) of the Act, is to a
large extent dynamic. The bona fide need
of the landlady may vary with decisive
events and so also the tenant's case about
the parties' comparative hardship. This
Court is of opinion, therefore, that the fact
that the landlady asserts that pending this
petition, the landlady's son has moved to
Aligarh and established a clinic in a rented
premises, a photostat copy of the rent
agreement whereof he has annexed to the
counter affidavit, must receive some
consideration by this Court. This is not to
say that the event in the case is to turn on
the said fact alone, or even decisively, for
the most of it is to be judged by the validity
of the findings recorded by the two Courts
below, on the twin issues of bona fide need
and comparative hardship.

22. The Prescribed Authority has
broadly opined that the landlady's need for
the demised shop, in order to house her
son's clinic there, is well established by the
fact that the evidence on record shows that
her son is not in any government
employment. The principle, according to
the Prescribed Authority, is that the
landlord has a right to ensure that every
adult member of the family is established in
independent business/ profession. In all
fairness to the tenant, the findings of the
Prescribed Authority on the question of
bona fide need are not very impressive. The
opinion of the Prescribed Authority on
comparative hardship is also not very well
considered either. Perhaps, it is for this
reason that the Appellate Court while
writing a judgment of affirmation had to
script a rather lengthy opinion, much
beyond what would normally be the length
of the expression.

23.

The
Appellate
Court
has
wholesomely reviewed the parties' case and
evidence on record, and after looking into
the affidavits and other documents, has
remarked that the tenant has said in its
11 All. Aligarh Sarrafa Committee, Sarrafa Bazar, Aligarh & Anr. Vs. Smt. Prabha Rani & Ors. 1067
counter affidavit, Paper No. 56-Ga that the
landlady's son earns with the Shroff Eye
Centre a minimum of Rs. 1 lakh per month,
and, therefore, the need set up by the
landlady is mala fide. It has also been
recorded by the Appellate Court that in the
same affidavit it has been asserted that the
landlady's son is not entirely unemployed
and his clinical education has been
completed in the year 2009. It has been
observed by the Appellate Court that in the
affidavit, it has been said by the tenant that
the landlady has a two storeyed house at
Gandhi Nagar, Aligarh, lying vacant, where
her son can establish his clinic. The
Appellate Court has recorded a finding to
the effect that it cannot be denied that the
landlady's son Prashant Gupta is a doctor,
who has passed his MD in Ophthalmology
from the AIIMS in the year 2009 and he is
an Ophthalmologist. At the time when the
release application was filed, the landlady's
son was employed with the Sanjay Gandhi
Memorial
Hospital,
Mangolpuri,
New
Delhi as a Senior Resident. The Appellate
Court has remarked that work as a Senior
Resident is part of the Postgraduate
Training, which a doctor after earning the
PG Degree has to undertake in a
Government or non-Government Hospital
for the purpose of achieving proficiency.
The maximum period of this training is
three years. The Appellate Court has
concluded that residentship is, therefore, in
its nature a temporary employment and not
permanent. The Appellate Court has
remarked that most doctors, after earning
their Postgraduate qualifications, establish
their own clinics and before they do so,
endeavour to gain maximum professional
experience by working as Residents in
different hospitals. It is on the basis of the
aforesaid position about the status of
residentship, which this Court thinks has
been correctly appreciated by the Appellate
Court that the submission of the tenant that
the landlady's son is permanently employed
at Delhi was rejected. We are in agreement
with the aforesaid conclusion recorded by
the Appellate Court.

24. The Appellate Court has also
taken note of the assertion in the landlady's
affidavit, Paper No. 34-Ga that her son, Dr.
Prashant
Gupta
has
completed
his
fellowship with the Shroff Eye Centre on
6th October, 2015 and that on account of
the demised shop not being released, forced
to continue in employment with the Shroff
Eye Centre. Note has also been taken of
another affidavit, bearing Paper No. 46-Ga,
where the landlady has stated that after
06.10.2015, upon completion of fellowship,
her son is continuing with the Shroff Eye
Centre on contract employment. On the
foot of all these affidavits, the Appellate
Court has remarked that it cannot be denied
that Dr. Prashant Gupta was doing his
Senior Residentship as part of his training
or fellowship at the Shroff Eye Centre and
after its completion, he is continuing there
on contract. The Appellate Court has
remarked that service on contract is
temporary in nature and upon the contract
coming to an end, the employer can always
remove an employee. The Shroff Eye
Centre
is
a
private
hospital.
The
management of this hospital can determine
the services the landlady's son by notice.
Thus, the services that Dr. Prashant Gupta
is rendering with the Shroff Eye Centre are
temporary in nature. It has, therefore, been
concluded that Dr. Prashan Gupta is not in
permanent employment. The Appellate
Court has also rejected the tenant's
submission that since the landlady's son has
a Voter ID Card and Aadhaar Card,
showing his domicile to be that of Delhi, he
is a permanent resident of Delhi. This
submission has been rejected on the foot of
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
the reasoning that once the landlady's son is
serving on contract basis in Delhi, it is but
logical that his Voter ID Card and address
would be that of Delhi. The Appellate
Court has remarked that the mere fact that
the landlady's son has an address of Delhi
and a Voter ID Card, showing domicile
Delhi,
does
not
mean
that
he
is
permanently established in Delhi. It has
been observed that no evidence has been
offered by the tenant to show that Dr.
Prashant Gupta is indeed permanently
settled in Delhi.

25. The Appellate Court has held that
the above circumstances show that the
landlady's
son
is
not
permanently
established in employment or practice at
Delhi. Therefore, if he wants to move to
Aligarh and set up an Ophthalmologist
Clinic, in order to permanently settle
himself in practice, in the Appellate Court's
opinion, it is not a case of mere shifting to
the demised shop. The landlady's need has,
therefore, been held bona fide on these
findings.

26. So far as the comparative hardship
is concerned, the Appellate Court has held
that burden lies on the tenant to establish it
in its favour. On the basis of various
affidavits on record, the Appellate Court
has noticed the different properties owned
by the tenant close by to the demised shop,
reference whereof has already been made
by this Court in the earlier part of the
judgment. It has particularly been opined
on the basis of affidavits, Paper Nos. 29Ga, 30-Ga and 31-Ga that the fact that the
tenant has a shop, opposite Kunji Lal's and
a vacant status has not been denied. The
Appellate Court has held that the said shop,
opposite the Pyaun and Kunji Lal, is
available to the tenant in a vacant state. It
has also been opined that two of the
tenant's shops already house functional
weighbridges. In addition, in the Surajbhan
Market, he has a three storeyed building,
which is being used as a guest house. The
first and second floors of the building are
lying vacant. These can be utilized for
shifting the weighbridge, currently housed
in the demised shop. Likewise, it could be
moved to the vacant shop, opposite Kunji
Lal and the Pyaun. On the basis of
existence of so much of alternative
accommodation, comparative hardship has
been answered against the tenant and for
the landlady.

27. It is on the basis of all these
conclusions that the order of release passed
by the Prescribed Authority has been
affirmed by the Appellate Court. There is
nothing on record to show that the
landlady's son is so well established in
Delhi, either in some kind of service at a
Government
Hospital
or
his
private
practice, that he would possibly not ever
think of moving to Aligarh and establishing
his clinic there. The Appellate Court is
quite right about its conclusions on the said
fact, where it is noted that the landlady's
son has an employment of sorts as doctor
on contract with a private hospital, which
can hardly be characterized as stable
employment.

28. Quite apart, a doctor like a lawyer
is the master of his profession, which he
can always practice independently. In fact,
very often the doctors, like lawyers, are
more inclined to independently practice,
rather than function under the yoke and
harness of employment. Even if the
landlady's
son
were
employed
in
government service, in a hospital outside
Aligarh, his desire to establish his own
practice and its facilitation by the landlady,
could not have been regarded as something,
11 All. Aligarh Sarrafa Committee, Sarrafa Bazar, Aligarh & Anr. Vs. Smt. Prabha Rani & Ors. 1069
which did not constitute bona fide need
within the meaning of Section 21(1)(a) of
the Act. There is little doubt that Dr.
Prashant Gupta is a member of the
landlady's family. His wife is not. The fact
that Dr. Prashant Gupta's wife has secured
some employment as an Assistant Professor
with the AIIMS at Saifai is hardly relevant
to judge the question of bona fide need,
which has rightly been confined by the
Courts below to that of Dr. Prashant Gupta.
There is authority in multitude and
preponderant that lay down for rule that if
the landlord requires some accommodation
for establishing himself or an adult member
of his family in business, which a fortiori
would include a profession, it does not lie
in the tenant's mouth to say that the
landlord can secure that objective by
establishing his business or profession
elsewhere. The same is true of the
landlord's adult family members. In this
connection, reference may be made to the
decision of this Court in Smt. Kanta and
others v. Additional District Judge,
Lucknow and 5 others, 2015 (1) ARC
459 (LB). In Smt. Kanta (supra), it has
been held:

"10. ........... A tenant cannot
dictate the terms to his landlord as to the
choice of accommodation. He has relied
upon a case reported in 2013 (1) ARC
217, Magan Lal Vs. Kalim Ullah, in
which it has been held that need of the
landlord to set up his son in a business, is
a bonafide need. Reliance has also been
placed upon the judgment reported in
2006 (1) ARC 282 Vishnu Kant Goswami
Vs. IInd A.D.J., Allahaad and another; in
which it has been held that every
landlord and every adult member of his
family is entitled to have a separate
independent business and no landlord or
any of his family member can be
compelled to participate in the family
business or joint business. Thus even if it
is found that the landlord-opposite party
no.3 is carrying on his business with his
family members, it cannot be said that he
cannot set up his adult son in an
independent business."

29. Another important authority on
the point is that of this Court in Bhagwat
Prasad
Agrawal
v.
Radha
Raman
Agrawal, 2015 (2) ARC 370. In Bhagwat
Prasad Agrawal (supra), it has been held:

"The
Prescribed
Authority
rejected the plea for the reason that the
tenant cannot dictate as to which premises
would suit the need of the landlord. The
tenant cannot dictate terms or advise to the
landlord that what he should do or what he
should not. It is the privilege of the
landlord to choose the nature and place of
business. Therefore, it was not open for the
petitioner to contend that the shop at the
first floor would be most suitable to the
landlord in carrying on the business in that
premises. The plea that the respondent is a
permanent resident of Delhi and, therefore,
the premises is not needed, was not
acceptable by the authorities for the reason
that merely because the landlord was
residing at Delhi would not mean that he
would not come to Kosi, Mathura, his
parental home, rather there is all the more
reason for the landlord to reside or to open
a office for Tax Consultancy, accordingly,
the authorities found the need set up by the
landlord to be bonafide. While considering
the comparative hardship, it was duly
proved by the landlord that the petitioner
has other shops in the city, accordingly,
relying upon Rule 16(2)(b) of the Rules of
1972 which provides that if the tenant is
having alternative accommodation in his
possession,
there
shall
be
greater
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
justification for allowing the release
application."

30. The landlord or a member of his
family has absolute freedom to forsake his
business or employment in another town or
city and shift to the place, where his/ her
property is situate and establish his/ her
business there, gainfully utilizing the
property. The tenant cannot be heard to say
that the landlord or for that matter a
member of his family should continue in
employment at another place, where for the
time being the landlord or the member of
his family, for whose need release is
sought, might be in employment or
business.

31. The learned Counsel for the tenant
has sought to draw a distinction between a
positive decision by the landlord to shift
according to his choice to the place, where
he owns property, that he seeks release of,
and the likelihood of the landlord indeed
shift
from
his
gainful
and
affluent
employment in another city. Invariably, the
landlady's choice to shift giving up
employment or business in another place or
town for the place where he/she owns
property, cannot be questioned. For the
sake of argument, however, if given the
particular circumstances of a landlord or a
member of his family, it can be shown by
indubitable evidence that the landlord or
the member of his family, for whose bona
fide need release is sought, is so well
established at another place that there is no
likelihood of the landlord indeed shifting
by any means and the application for
release is nothing, but a sham, an arguable
case might be made out. However, this
Court does not wish to express any opinion
on the point, because on the facts here, it
does not really arise. The employment of
the landlady's son here is a contractual
engagement with a private hospital at Delhi
and can, by no standard, be said to be such
flourishing engagement that the landlady's
son cannot be imagined to opt shifting to
Aligarh and establish his clinic there.

32. So far as the issue of comparative
hardship is concerned, both the Courts
below have opined against the tenant and
evidence is overwhelming on record with
details of properties that shows that the
tenant has property close by, even vacant
and available, where it can shift. This Court
is not inclined to interfere with the finding,
therefore, on the issue of comparative
hardship as well.

33. Before parting, this Court must
remark that though the rent agreement that
has been brought on record through the
counter affidavit is not part of the record
before the Authorities below and generally
may not be looked into, but it is indeed a
supervening event of much consequence. In
the rejoinder affidavit filed on behalf of the
tenant in Paragraph No. 21, there is a bald
denial of the fact that the landlady's son has
established his clinic at Aligarh in the year
2020, pending this petition in a rented
premises. There is no evidence brought or
attempted to be secured through the process
of Court to demonstrate that in fact the rent
agreement is a fake document and the
landlady's son has not established his clinic
in the rented premises, details whereof are
given in the rent agreement with full
disclosure
of
the
landlord's
name,
parentage,
address
and
that
of
the
landlady's son, besides the terms of the
lease. Instead, in answer, the tenant has
asserted that the landlady's son has
purchased a house admeasuring 284.98
square meters, part of House No. 3/73A,
located at Plot No. 18, Vikram Colony,
Koil, Aligarh, through a registered sale
11 All. Sri Natthoomal Vs. A.D.J., Mathura & Ors.
1071
deed dated 13.11.2017, a copy whereof has
been annexed, and that he can utilize the
said property to establish his clinic. It is a
well settled principle that the tenant cannot
dictate to the landlord even if he has other
property, the one he chooses to establish
his business or profession. That apart, the
property that has been purchased in the
year 2017 appears to be residential
property, which may not be suitable for a
clinic or may be contrary to the local
authorities' regulations as well, regarding
residential and commercial user. The facts
that have been noticed in the last part of our
judgment have primarily been looked into
for the purpose of considering whether this
Court should exercise its extraordinary
jurisdiction to interfere with the concurrent
findings of the two Courts of fact below.
The facts additionally noticed, leave no
manner of doubt in this Court's mind that
the tenant is not entitled to relief in the
exercise of our equitable jurisdiction under
Article 226 of the Constitution.

34. This petition fails and is
dismissed.

35.

The
interim
order
dated
08.04.2022 is hereby vacated.

36. However, considering the facts
and circumstances, the tenant-petitioners
are allowed six months time to handover
peaceful and vacant possession of the
shop in dispute provided they execute an
undertaking
before
the
Prescribed
Authority,
Aligarh,
embodying
the
following terms within one month of
date:

(1) The tenants shall handover
peaceful and vacant possession of the
demised shop to the landlady-respondent
no.1 on or before 03.05.2023.

(2) During the period of six
months that they remain in occupation, they
will not sublet the shop, damage or
disfigure it in any manner whatsoever.

37. In the event, an undertaking, as
above directed, is not filed before the
Prescribed Authority by the tenant within
the time allowed or undertaking is violated,
the release order shall become executable
forthwith.
----------
(2022) 11 ILRA 1071
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 57399 of 2008

Sri Natthoomal ...Petitioner
Versus
A.D.J., Mathura & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arun Kumar Vishwakarma, Sri Neeraj
Srivastava, Sri Atul Dayal (Sr. Advocate)

Counsel for the Respondents:
Sri Rahul Sahai, Sri Rajesh Gupta, Sri Satish
Pandey

Civil Law - Constitution of India - Article
226, - U. P. Urban Building Regulation of
Letting, Rent and Eviction Act, - Sections
21, 21(1)(a) & 22 - Landlord's bona fide need
- demised shop - which was occupying by the
tenant at a measly rent of Rs. 70/- since long
term - proceeding for vacating the tenant on
account of the bona fide needs - Landlord wants
to establish his one of sons in independent
business - trial court decreed the suit in favour
of landlord - in appeal set-aside - Writ Petition -
issue of 'Comparative Hardship' discussed - the
bona fide need cannot be presumed, but once
that is established, the difficulty faced by the