# Awadesh Kumar & Ors. Tenants v. Rameshwar Dayal (Deceased) & Ors

- **Citation:** (2022) 12 ILRA 529
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-17
- **Case number:** Writ-A No. 11644 of 2018
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadesh-kumar-ors-tenants-v-rameshwar-dayal-deceased-ors-47924
- **Pages:** 14

## Headnote

A. Land Law - Tenancy - Bona fide need -
Comparative hardship - The Uttar Pradesh
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (U.P. Act No.
13
of
1972)
-
Section
21(1)(a)
-
Jurisdiction - The tenants cannot be
permitted to urge a new ground, before
this Court, based on a case that was never
taken before the two Authorities below. It
is, therefore, held that the Authorities
below have rightly opined that the Act
would to the demised shop and further
that there is relationship of landlord and
tenant between parties. (Para 19, 28)

The tenants have urged that the Act of 1972 is
not applicable to the demised shop, inasmuch it
is the landlord's admission in the notice to quit
(Para 5) dated 09.04.2010 and in the plaint
giving rise to Suit No. 3 of 2012, instituted
before the Judge, Small Cause Court that it does
not apply. This Court has also been taken
through the contents of the plaint, giving rise to
Suit No. 3 of 2012. It must be remarked
here that it was the tenant's case before
the Authorities below as well that the Act
does not apply, but the basis to claim that
was very different from that urged by the
tenants here. (Para 23)

A perusal of the notice does show that there is
an assertion in Para 5 that the Act does not
apply, but this point was not raised before the
two Authorities of fact below. It cannot be
permitted to be raised for the first time before
this Court in writ proceedings. Also, the
averment in Para 5 of the notice to quit
dated 09.04.2010 apart, the plaint giving
rise to S.C.C. Suit No. 3 of 2012, does not
show at all that it was ever pleaded by the
tenants that the Act does not apply. (Para
27)

The term of the lease was initially for a period
of 30 years, reckoned from the year 1955. This
lease deed has been twice renewed for the
same period of time. There is enough evidence
by way of admission and documents on record
to show that the tenants, who do not renounce
their character as such, were tenants, to whom
the demised shop was let out by the landlord.
There is no relationship of landlord and
tenant
between
the
Nagar
Palika
Parishad, Konch and the tenants. It
cannot possibly be so, on the basis of
given St. of evidence, which the two
Authorities
below
have
correctly
appreciated. (Para 25)

It has been held concurrently by the two
Authorities below that the land, whereon the
demised shop stand was leased to the
530 INDIAN LAW REPORTS ALLAHABAD SERIES
landlord's father by the Nagar Palika. The
Authorities below have also drawn a
distinction between the 'owner' and
'landlord' to hold that the Nagar Palika
might
be
the
owner,
but not the
landlord. The tenancy originally stood in the
name of the tenants' father, Balram Soni,
from whom the tenants have inherited it. The
fact that there is a relationship of landlord
and tenant for the aforesaid reason between
parties, cannot be denied, which too, the
tenants
have
attempted
to
do

## Text

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12 All. Awadesh Kumar & Ors. Vs. Rameshwar Dayal (Deceased) & Ors.
529
Managaer (HR), Competent Authority, is
set aside and the matter is remanded back
to the Higher Authority i.e General
Manager of the Bank/respondent No.3 than
the Authority, who has issued a show cause
notice.

51. Liberty is granted to the
respondent-Bank to proceed afresh against
the petitioner in accordance with law and as
per the observation made in the order.

52. The writ petition is, accordingly,
allowed.
----------
(2022) 12 ILRA 529
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2022

BEFORE

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

Writ-A No. 11644 of 2018

Awadesh Kumar & Ors.
 ...Tenants-Petitioners
Versus
Rameshwar Dayal (Deceased) & Ors.
 ...Landlords/Respondents

Counsel for the Petitoners:
Sri B.N. Agarwal, Sri Sanjay Agrawal, Ms.
Sufia Saba

Counsel for the Respondents:
Sri Atul Dayal (Senior Adv.), Sri Ayush
Khanna

A. Land Law - Tenancy - Bona fide need -
Comparative hardship - The Uttar Pradesh
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (U.P. Act No.
13
of
1972)
-
Section
21(1)(a)
-
Jurisdiction - The tenants cannot be
permitted to urge a new ground, before
this Court, based on a case that was never
taken before the two Authorities below. It
is, therefore, held that the Authorities
below have rightly opined that the Act
would to the demised shop and further
that there is relationship of landlord and
tenant between parties. (Para 19, 28)

The tenants have urged that the Act of 1972 is
not applicable to the demised shop, inasmuch it
is the landlord's admission in the notice to quit
(Para 5) dated 09.04.2010 and in the plaint
giving rise to Suit No. 3 of 2012, instituted
before the Judge, Small Cause Court that it does
not apply. This Court has also been taken
through the contents of the plaint, giving rise to
Suit No. 3 of 2012. It must be remarked
here that it was the tenant's case before
the Authorities below as well that the Act
does not apply, but the basis to claim that
was very different from that urged by the
tenants here. (Para 23)

A perusal of the notice does show that there is
an assertion in Para 5 that the Act does not
apply, but this point was not raised before the
two Authorities of fact below. It cannot be
permitted to be raised for the first time before
this Court in writ proceedings. Also, the
averment in Para 5 of the notice to quit
dated 09.04.2010 apart, the plaint giving
rise to S.C.C. Suit No. 3 of 2012, does not
show at all that it was ever pleaded by the
tenants that the Act does not apply. (Para
27)

The term of the lease was initially for a period
of 30 years, reckoned from the year 1955. This
lease deed has been twice renewed for the
same period of time. There is enough evidence
by way of admission and documents on record
to show that the tenants, who do not renounce
their character as such, were tenants, to whom
the demised shop was let out by the landlord.
There is no relationship of landlord and
tenant
between
the
Nagar
Palika
Parishad, Konch and the tenants. It
cannot possibly be so, on the basis of
given St. of evidence, which the two
Authorities
below
have
correctly
appreciated. (Para 25)

It has been held concurrently by the two
Authorities below that the land, whereon the
demised shop stand was leased to the
530 INDIAN LAW REPORTS ALLAHABAD SERIES
landlord's father by the Nagar Palika. The
Authorities below have also drawn a
distinction between the 'owner' and
'landlord' to hold that the Nagar Palika
might
be
the
owner,
but not the
landlord. The tenancy originally stood in the
name of the tenants' father, Balram Soni,
from whom the tenants have inherited it. The
fact that there is a relationship of landlord
and tenant for the aforesaid reason between
parties, cannot be denied, which too, the
tenants
have
attempted
to
do,
albeit
unsuccessfully, before the Authorities below.
(Para 24, 26)

The suit is clearly one based on a cause of
action of default under the Act, upon a
wholesome reading of the plaint. If at all the
tenants had to seriously urge that the
landlord had admitted in his pleadings
or elsewhere like the notice to quit, that
the Act did not apply, the point had to be
raised before the Authorities below and
the landlord confronted with the same.
The necessity arising, he had to be crossexamined the way it was done with reference
to the other issues raised by parties,
regarding which witnesses were produced.
Nothing of the kind was done, because the
point was never raised. (Para 28)

B. Relationship of landlord and tenant
- It is by now well settled that in case
of the death of the sitting tenant, in
case of a non-residential building, all
his heirs inherit the tenancy no doubt,
but they do so as joint tenants; not as
tenants in common. Therefore, the
heirs of the deceased-tenant, vis-à-vis
the landlord, inherit a single tenancy
and not divisible rights. Notice to one
or impleadment of one for the purpose
of bringing an action to evict or
release proceedings is good against all
the joint tenants. It is not necessary to
implead every heir of the deceasedtenant as a party to the proceedings.
(Para 29)

The tenants having inherited the tenancy
from their father upon his death, it has been
held that the failure to join the tenant's
mother was hardly of consequence. (Para 19)
C. Bona fide need - The tenants have no
right to tell the landlord how and in what
manner, he should go about satisfying his
bona fide need. It is not for the tenant to
dictate terms to the landlord as to how
else he can adjust himself without getting
possession of the tenanted premises.
While deciding the question of bona fides
of the requirement of the landlord, it is
quite unnecessary to make an endeavour
as to how else the landlord could have
adjusted himself. (Para 40)

The tenant cannot object nor can raise
such a plea that the landlord has other
accommodation from which he can do the
business. It is true that there is evidence on
record to show that the landlord has shops in
two or three localities and some of them, the
landlord has acknowledged with candor, to be
vacant. These shops are located in Mohalla
Jawahar Nagar. There is no evidence that the
other shops are vacant and available. (Para 39,
41)

The tenant says that the landlord has a number
of shops available with him, where his son can
set up independent business. That is precisely
what the tenant cannot tell the landlord. Once
the landlord's son is proven to be not gainfully
employed in independent business, it is the
landlord's right to seek release of any of the
shops that he owns for his son's need. The
landlord cannot be driven to ask his son to set
up business in a vacant shop of his, which is not
the landlord's choice. (Para 40)
The evidence on record, which the Authorities
below have noticed, squarely attracts the
principle, where the landlord, who has a bona
fide need, cannot be instructed by the tenant to
satisfy it elsewhere in a manner that the tenant
suggests. (Para 42)

D.
Comparative
hardship
-
The
two
Authorities below have taken note of the fact
that the tenants have not made efforts to
find alternative accommodation during all
this period of time, which tilts the balance
of comparative hardship against them. The
Appellate Authority has taken particular note of
the fact that the tenant in his cross-examination
has said that even if the landlord were to offer
him another shop, he would not vacate the
12 All. Awadesh Kumar & Ors. Vs. Rameshwar Dayal (Deceased) & Ors.
531
demised shop. This stand of the tenants, the
Appellate Authority has regarded as malicious.
(Para 44)

This Court is of opinion that the issue of
comparative hardship has been rightly
answered against the tenants by the
Authorities below. Quite apart, this Court in a
writ petition u/Article 226 of the Constitution
generally ought not to interfere with concurrent
findings of fact recorded by the Authorities
below, unless shown to be perverse or
manifestly illegal. That is not the case here.
(Para 45)

Writ petition dismissed. (E-4)
Precedent followed:

1. Harish Tandon Vs A. D. M., Allahabad, U.P. &
ors., (1995) 1 SCC 537 (Para 29)

2. Sarla Ahuja Vs United India Insurance
Company Ltd., (1998) 8 SCC 119 (Para 40)

3. Ram Kumar Vs IVth A. D. J., Kanpur & ors.,
2004 SCC OnLine All 726 (Para 41)

4. Mohd. Ayub & anr. Vs Mukesh Chand, (2012)
2 SCC 155 (Para 42)

Present writ petition assails order of
release dated 01.04.2016, passed by the
Prescribed Authority and judgment and
order dated 15.02.2018, passed by the
learned District Judge, affirming all the
findings of the Prescribed Authority.

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

This is a tenants' writ petition assailing
an order of release 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. An application for the release of a
shop, situate in Mohalla Lajpat Nagar,
Bazar Manik Chowk, Konch, District
Jalaun, was moved by Rameshwar Dayal
son of Sri Munga Lal before the Prescribed
Authority/ Civil Judge (Jr. Div.), Konch,
District Jalaun against the three tenantpetitioners,
Awadesh
Kumar,
Jitendra
Kumar and Mukesh Kumar, all sons of the
late Balram Soni. The boundaries of the
shop aforesaid are detailed at the foot of the
release application, instituted before the
Prescribed Authority. This shop shall
hereinafter be referred to as ''the demised
shop'.

3. The application for release under
Section 21(1)(a) of the Act was moved by
Rameshwar Dayal against the three tenantpetitioners on the ground of his bona fide
need, which shall hereinafter be detailed.

4. Pending proceedings before the
Appellate Authority, Rameshwar Dayal
died and was substituted by his heirs and
LRs, who are landlord-respondents nos.
1/1, 1/2, 1/3, 1/4 and 1/5 to this petition.
Rameshwar Dayal (since deceased) and
represented by his heirs and LRs on record,
shall hereinafter be referred to as ''the
landlord', unless the context requires
individual reference, in which case the
landlord concerned will be referred to by
his name. The application for release
instituted by the landlord before the
Prescribed Authority, Jalaun at Orai was
registered as P.A. Case No. 4 of 2012. The
case of the landlord was that the demised
shop, the boundaries whereof are detailed
in Paragraph No. 1 of the application (also
at the foot thereof) was in the tenancy
occupation of the tenant-petitioners' father,
Balram son of Hariram Soni.

5. The landlord asserted that the
tenant-petitioners' father held the demised
shop as his tenant. The three tenant-
532 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners,
Awadesh
Kumar,
Jitendra
Kumar and Mukesh Kumar, who shall
hereinafter be referred to as ''the tenants'
(unless the context requires individual
reference, in which case the tenantpetitioner(s) concerned shall be mentioned
by name) succeeded to the tenancy
occupation of the demised shop upon their
father's death on 16.04.2006. The tenants
are in arrears of rent, which is payable at
the rate of Rs.225/- per month, amounting
to Rs.2700/-, due since before 01.04.2006.
The tenants are defaulters.

6. According to the landlord, amongst
the tenants, Awadesh Kumar was managing
a tea shop in partnership with one Gopi
Chand Saxena at Mohalla Naya Gandhi
Nagar, Konch. Likewise, the other tenant,
Jitendra Kumar has established his business
under the name and style of Balaji
Jewellers in a shop situate at Town Ait. The
third tenant, Mukesh Kumar had migrated
to Pune, Maharashtra, where he was
employed as a worker in a factory and
permanently domiciled there. The demised
shop is lying locked. The tenants, therefore,
have no use for the demised shop at all,
which has lost all purpose and utility for
them. The landlord requires the demised
shop for his younger son, Mukesh Kumar,
who is aged about 30 years, educated and
unemployed still. Mukesh Kumar has
married 8 years ago and is living
separately. The landlord desires to settle his
son aforesaid in the jewellers' business,
utilizing the demised shop, which is
suitable for the purpose.

7. The need of the landlord compared
to the tenants is weightier. The tenants
would not face any hardship in vacating the
demised shop, because they do not need it,
whereas the landlord would face extreme
hardship in case release were refused. This
is so as the landlord does not have any
alternative shop for the purpose of
establishing his son, Mukesh Kumar in
business.

8. It was also averred in the
application for release that on 20.09.2012,
the landlord caused a notice to quit to be
served upon the tenants, asking them to
vacate the demised shop and handover
vacant possession upon the expiry of 30
days from the date of receipt, but the
tenants upon service got the same answered
through their Counsel vide reply dated
15.10.2012, premised on incorrect facts and
disclosing
an
untenable
stand.
The
provisions of the Act are applicable to the
demised shop. It is on the basis of the said
case that the landlord sought release of the
demised shop in his favour.

9. The tenants filed a written
statement dated 10.04.2013, wherein they
acknowledged their status as tenants and
pleaded that their father was earlier the
tenant in the demised shop. Now, the
tenants held those rights. The assertion
about one of the tenants being a partner
with Gopi Chand Saxena in a shop at
Gandhi Nagar, Konch was denied. It was
asserted that Gopi Chand Saxena was a
tenant of some kind of a structure situate to
the west of the demised shop along with
Awadesh Kumar, described in vernacular
as a ''Dhala', which was rented to them by
the Nagar Palika Parishad, Konch at the
rate of Rs.120/- per year. Gopi Chand
Saxena and Awadesh Kumar were partners
in
business
managed
in
the
Dhala
aforesaid, which was distinct and different
from the demised shop. The tenants
pleaded that it was falsely claimed by the
landlord that Gopi Chand Saxena was a
partner along with Awadesh Kumar in the
demised shop.
12 All. Awadesh Kumar & Ors. Vs. Rameshwar Dayal (Deceased) & Ors.
533

10. It was denied that the landlord's
son, Mukesh Kumar was unemployed. The
receipt of notice served by the landlord was
also acknowledged, but not the contents
thereof. It was also refuted that the
provisions of the Act apply to the demised
shop. About the inapplicability of the Act,
the stand taken in Paragraph No.7 of the
written statement was that the Act does not
apply, because the owner and landlord of
the demised shop is not Rameshwar Dayal,
but the Nagar Palika Parishad, Konch.

11. In the additional pleas, it was
asserted that the landlord had earlier
instituted S.C.C. Suit No. 3 of 2012,
Rameshwar Dayal vs. Awadesh Kumar and
others on 16.01.2012 before the Judge,
Small Cause Court, wherein they had
impleaded
the
tenants'
mother,
Smt.
Bhagwan
Devi
as
a
defendant,
acknowledging her to be a tenant in the
demised shop. It was asserted that she was
not impleaded as a party to the present
application, rendering it bad for nonjoinder of a necessary party. The stand that
was further taken in the written statement
was that the landlord's case that they are
owners and landlords of the demised shop
is incorrect. The true owner and landlord of
the demised shop is the Nagar Palika
Parishad, Konch, in whom the ownership
of the said shop vests. The landlord of the
demised shop being the Nagar Palika
Parishad, Konch, which is a local authority,
the provisions of the Act were not
applicable. In consequence, proceedings for
release under Section 21(1)(a) of the Act
were not maintainable.

12. There is then an assertion by the
tenants to the effect that the Nagar Palika
Parishad, Konch is established by the
quinquennial tax assessment register for the
years 1995-2000 to be the owner and
landlord of the demised shop. The said
record further shows that the landlord's
father, Munga Lal son of Mukta Prasad was
a lessee of the demised shop. On the foot of
the said assertions, it is pleaded that the
landlords have no locus standi to maintain
proceedings for release, because it is the
Municipal Board, Konch, which alone can
initiate proceedings to evict the tenants.

13. The boundaries of the demised
shop were also claimed to be incorrectly
described by the landlord. The tenant has
further asserted that the landlord has
already instituted a suit for eviction against
the tenants, wherein an application under
Order XV Rule 5 CPC is pending disposal.
The case of bona fide need of the landlord
has been denied. It is pleaded that the
landlord is an Advocate by profession as
the notice dated 09.04.2010 served by him
shows. His son, Mukesh Kumar does not
require the demised shop at all, because he
is not unemployed. The need set up by the
landlord, therefore, is artificial, which
cannot be the basis of granting an
application under Section 21(1)(a) of the
Act.

14. It is the tenants' case that in
Mohalla Jai Prakash Nagar, the landlord
owns two shops and a house, where one
shop is lying vacant. In the same locality,
the landlord has purchased a new shop in
the name of his wife, Smt. Shakuntala,
which is lying vacant. There is an averment
that if at all ''the so called son' of the
landlord requires a shop for purpose of
business, he can utilize the vacant shop,
newly purchased. The tenant has also
asserted that the landlord has four other
shops in Mohalla Patel Nagar, Town
Konch, out of which two are in the
occupation of his sons, Sanjay Soni and
Mukesh Soni, who carry on the business of
534 INDIAN LAW REPORTS ALLAHABAD SERIES
jewellers for the past many years therein.
As such, the landlord's son, Mukesh Kumar
cannot be said to be without livelihood.
The tenants, on the other hand, have no
other shop to earn their livelihood, except
the demised shop. Amongst the tenants,
Awadesh Kumar and Jitendra Kumar are
married men, who have in their family their
wives and four children. Mukesh Kumar,
amongst the tenants, is unmarried. The
tenants' mother is still alive. They are a
family of ten souls, all of whom are
dependent upon the demised shop for
sustenance.

15. It is in the last asserted by the
tenants that comparative hardship lies in
their favour as they would suffer greater
hardship in the event of release than that
which the landlord would face in the event
of refusal of the application.

16. The landlord by way of
documentary evidence, filed a copy of the
notice dated 20.09.2012, paper No. 9-Ga,
the registered postal receipt and the
acknowledgment, paper No. 10-Ga-1, a
copy of the lease deed, paper No. 27-Ka-1,
the Board Resolution, paper No. 28-Ga1, a
copy of the plaint giving rise to O.S. No.
132/10, paper No. 29-Ga-1, a copy of the
written statement filed in Suit No. 132/10,
paper No. 30-Ga-1, a copy of the written
statement filed in O.S. No. 39/12, paper
No. 31-Ga-1, receipt bearing paper No. 55Ga-1, acknowledgment, paper No. 56-Ga1, reply notice, paper No. 57-Ga-1 and a
copy of the order passed in Suit No.
439/12, paper No. 58-Ga-1. Apart from
these documents, the landlord led oral
evidence in form of affidavits of PW-1,
Rameshwar Dayal, PW-2, Banke Bihari
Soni and PW-3, Ashutosh Kumar Gupta.
These witnesses were cross-examined with
the permission of the Court.

17. The tenants produced in their
documentary evidence through a list, paper
No. 43-Ga-1, a copy of the plaint giving
rise to S.C.C. Suit No. 03/2012, paper No.
44-Ga-1, copy of the written statement,
paper No. 45-Ga-1, a copy of the sale deed
dated 23.03.2013 executed by Laxmi Devi
in favour of Mukesh Kumar, Paper No. 46Ga-1, a copy of the sale deed executed by
Shailesh Sonkar in favour of Shakuntala
wife of Rameshwar and a sanctioned plan
for Mukesh's house, paper No. 47-Ga-1.
Through another list, paper No. 59-Ga-1, a
copy of the sale deed executed by Mukesh
Kumar in favour of Kamlesh Kumar, paper
No. 60-Ga-1 and a copy of the sale deed
executed by Mukesh Kumar in favour of
Harcharan, paper No. 61-Ga-1 were filed.
Apart from these documents, the tenants
produced oral evidence on affidavit,
comprising affidavits of DW-1, Awadesh
Kumar, DW-2, Hanif and DW-3, Gopi
Chand Saxena. The witnesses were crossexamined with permission of the Court.

18. The Prescribed Authority framed
the following issues, in terms of which the
parties'
case
was
considered
by
it
(translated into English from Hindi):

"(1) Whether in the present case, the
provisions of Act No. 13 of 1972 do not apply?

(2) Whether the relationship of
landlord and tenant exists between the
applicant and the opposite party?

(3) Whether the applicant has
bona fide need for the shop in dispute?

(4) Whether the applicant would
face greater hardship in comparison to the
opposite party?

(5) Whether the opposite party
deserves to be evicted from the shop in dispute?"

19. The Prescribed Authority in
substance held that the tenants had taken the
12 All. Awadesh Kumar & Ors. Vs. Rameshwar Dayal (Deceased) & Ors.
535
demised shop on rent from the landlord and
was paying rent to Rameshwar Dayal. As
such, Rameshwar Dayal was the landlord, visa-vis the tenants. The Prescribed Authority
held that the tenants' case that the land, on
which the demised shop was constructed, was
taken on lease from the Nagar Palika Parishad,
Konch, would not make the Nagar Palika
Parishad the landlord vis-a-vis the tenants.
Thus, the provisions of the Act would apply to
the demised shop and it would not be exempt
from the operation of the Act by virtue of
Section 2(1). The question of relationship of
landlord and tenant was answered accordingly,
bearing in mind the distinction between the
well defined concepts of owner and landlord
of an immovable property. The tenants having
inherited the tenancy from their father upon
his death, the Prescribed Authority also held
that the failure to join the tenants' mother, was
hardly of consequence. This was so, because
the tenants, which may include their mother,
were joint tenants, and proceedings against
one were competent against all. The issue of
bona fide need and comparative hardship were
answered in favour of the landlord and against
the tenants.

20. On the aforesaid findings, the
Prescribed Authority allowed the release
application and directed the tenants' eviction
upon usual terms as to payment of two years'
rent as compensation by the landlord vide
judgment and order dated 01.04.2016. The
aforesaid judgment was impugned in appeal
before the District Judge, Jalaun at Orai. The
appeal was registered before the learned
District Judge as Rent Appeal No. 4 of 2016. It
was heard and dismissed by the learned
District Judge vide judgment and order dated
15.02.2018, affirming all the findings of the
Prescribed Authority.

21. Aggrieved, the tenants have
preferred the present writ petition.

22. Heard Mr. B.N. Agarwal, learned
Counsel for the tenants and Mr. Atul Dayal,
learned Senior Advocate assisted by Mr.
Ayush Khanna, learned Counsel appearing
for the landlords.

23. The learned Counsel for the
tenants has much emphasized the point that
the provisions of the Act are not applicable
to the demised shop. He submits that the
two
Authorities
below
have
written
palpably erroneous findings on the said
issue, which is jurisdictional and vitiates
the release order. It is argued that the Act
not being applicable, the application for
release
is
not
maintainable.
Learned
Counsel for the tenants has urged that the
Act is not applicable to the demised shop,
inasmuch it is the landlord's admission in
the notice to quit dated 09.04.2010 and in
the plaint giving rise to Suit No. 3 of 2012,
instituted before the Judge, Small Cause
Court that it does not apply. Learned
Counsel for the tenants has drawn the
attention of this Court to Paragraph No. 5
of the notice to quit, where there is an
assertion that the Act does not apply. This
Court has also been taken through the
contents of the plaint, giving rise to Suit
No. 3 of 2012. It must be remarked here
that it was the tenant's case before the
Authorities below as well that the Act does
not apply, but the basis to claim that was
very different from that urged by the
learned Counsel for the tenants here.

24. Before the Authorities below, the
case was that the Nagar Palika Parishad
was the owner and landlord of the demised
shop and a building, of which a Local
Authority is the landlord, is exempt from
operation of the Act. The Act is not
applicable. Both the Authorities below, on
the basis of evidence on record, came to the
conclusion that the aforesaid stand of the
536 INDIAN LAW REPORTS ALLAHABAD SERIES
tenants was far from tenable. It has been
held concurrently by the two Authorities
below that the land, whereon the demised
shop stand was leased to the landlord's
father by the Nagar Palika. The demised
shop was constructed by the landlord's
father, Munga Lal and let out to the tenants.
The Authorities below have opined that the
Nagar Palika may be the owner of the
underlying land, on which the demised
shop stands, but so far as the demised shop
is concerned, the landlord is the owner
thereof and the landlord as well.

25. It appears to us that there is hardly
a cavil about the fact that the land, whereon
the demised shop stands, was given on
lease for 30 years by the Nagar Palika to
the landlord's father, Munga Lal. A copy of
the lease deed was filed on record before
the Authorities below as Paper No. 27-Ga1. The term of the lease was initially for a
period of 30 years, reckoned from the year
1955. This lease deed has been twice
renewed for the same period of time. There
is enough evidence by way of admission
and documents on record to show that the
tenants, who do not renounce their
character as such, were tenants, to whom
the demised shop was let out by the
landlord. There is no relationship of
landlord and tenant between the Nagar
Palika Parishad, Konch and the tenants. It
cannot possibly be so on the given state of
evidence, which the two Authorities below
have correctly appreciated.

26. Before the Authorities below, the
tenants went inconsistent to say that they
were tenants, but held the demised
premises on behalf of the Nagar Palika
Parishad, Konch, who are the landlord.
There is not the slightest evidence on
record to show any contract of tenancy
between the tenants and the Nagar Palika.
There is no rent agreement or receipt to
establish it. The tenants raised the aforesaid
plea before the Authorities below to escape
the jurisdiction of the Authorities under the
Act by attempting to project the Nagar
Palika as the owner and the landlord of the
demised shop. In the opinion of this Court,
the Authorities below rightly repelled the
said case pleaded by the tenants, which is
preposterous to its face. The Authorities
below have also drawn a distinction
between the ''owner' and ''landlord' to hold
that the Nagar Palika might be the owner,
but not the landlord. That is a far-fetched
remark, because the Nagar Palika is
certainly not the owner of the demised
shop, which has been constructed by the
landlord's father, from whom the landlord
has inherited it. The tenancy originally
stood in the name of the tenants' father,
Balram Soni, from whom the tenants have
inherited it. The fact that there is a
relationship of landlord and tenant for the
aforesaid reason between parties, cannot be
denied, which too, the tenants have
attempted to do, albeit unsuccessfully,
before the Authorities below.

27. Before this Court, the tenants have
urged it for the first time that the Act does
not apply for a different reason. The reason
is the admission in the notice to quit dated
09.04.2010 and the plaint in S.C.C. Suit
No. 3 of 2012. A perusal of the notice does
show that there is an assertion in Paragraph
No. 5 that the Act does not apply, but this
point was not raised before the two
Authorities of fact below. In our opinion,
therefore, it cannot be permitted to be
raised for the first time before this Court in
writ proceedings. Also, the averment in
Paragraph No. 5 of the notice to quit dated
09.04.2010 apart, the plaint giving rise to
S.C.C. Suit No. 3 of 2012, does not show at
all that it was ever pleaded by the tenants
12 All. Awadesh Kumar & Ors. Vs. Rameshwar Dayal (Deceased) & Ors.
537
that the Act does not apply. The pleadings
in the plaint giving rise to S.C.C. Suit No. 3
of 2012 show that one shop was let out to
the tenants on 14.09.1975, and, later on, an
adjoining one on 13.02.1991, when it was
vacated.

28. Upon the representation of the
tenants that they would enhance rent, the
landlord's father, Balram got the partition
wall between the two shops removed and
carried out major repairs, leading to the
demised shop being a new one in the year
1991. It is perhaps from the said averment
that the tenants have been inspired into
urging before this Court that the landlords
have pleaded in the plaint, giving rise to
S.C.C. Suit No. 3 of 2012, that the Act does
not apply. A careful reading of the plaint does
not at all show it to be the landlord's case that
the Act does not apply. The suit is clearly one
based on a cause of action of default under
the Act, upon a wholesome reading of the
plaint. If at all the tenants had to seriously
urge that the landlord had admitted in his
pleadings or elsewhere like the notice to quit,
that the Act did not apply, the point had to be
raised before the Authorities below and the
landlord confronted with the same. The
necessity arising, he had to be crossexamined the way it was done with reference
to the other issues raised by parties, regarding
which witnesses were produced. Nothing of
the kind was done, because the point was
never raised. Therefore, before this Court, the
tenants cannot be permitted to urge a new
ground based on a case that was never taken
before the two Authorities below. It is,
therefore, held that the Authorities below
have rightly opined that the Act does not
apply and further that there is relationship of
landlord and tenant between parties.

29. The next point that has been urged
is that the original tenant was Balram Soni,
who left behind him as his heirs and LRs
not just the tenants, but their mother,
Bhagwan Devi as well. It is urged that
Bhagwan Devi was impleaded as a partydefendant to S.C.C. Suit No. 3 of 2012
instituted by Rameshwar Dayal against the
tenants, but for some inexplicable reason
that course was not adopted while bringing
the present release proceedings. It is urged
that
in
the
case
of
a
commercial
accommodation, every heir of the original
tenant inherits the tenancy under Section
3(a)(2) of the Act. It is by now well settled
that in case of the death of the sitting
tenant, in case of a non-residential building,
all his heirs inherit the tenancy no doubt,
but they do so as joint tenants; not as
tenants in common. Therefore, the heirs of
the deceased-tenant, vis-a-vis the landlord,
inherit a single tenancy and not divisible
rights. Notice to one or impleadment of one
for the purpose of bringing an action to
evict or release proceedings is good against
all the joint tenants. It is not necessary to
implead every heir of the deceased-tenant
as a party to the proceedings. This position
is beyond cavil after the decision of the
Supreme Court in Harish Tandon v. Addl.
District Magistrate, Allahabad, U.P. and
others, (1995) 1 SCC 537. In Harish
Tandon (supra), it has been held:

"22. The attention of the learned
Judges constituting the Bench in the case of
H.C. Pandey v. G.C. Paul [(1989) 3 SCC
77] was not drawn to the view expressed in
the case of Mohd. Azeem v. Distt. Judge
[(1985) 2 SCC 550 : (1985) 3 SCR 906] .
There appears to be an apparent conflict
between the two judgments. It was on that
account that the present appeal was
referred to a Bench of three Judges.
According to us, it is difficult to hold that
after the death of the original tenant his
heirs become tenants-in-common and each
538 INDIAN LAW REPORTS ALLAHABAD SERIES
one of the heirs shall be deemed to be an
independent tenant in his own right. This
can be examined with reference to Section
20(2) which contains the grounds on which
a tenant can be evicted. Clause (a) of
Section 20(2) says that if the tenant is in
arrears of rent for not less than four
months and has failed to pay the same to
the landlord within one month from the
date of service upon him of a notice of
demand, then that shall be a ground on
which the landlord can institute a suit for
eviction............. We are of the view that if it
is held that after the death of the original
tenant,
each
of
his
heirs
becomes
independent tenant, then as a corollary it
has also to be held that after the death of
the original tenant, the otherwise single
tenancy stands split up into several
tenancies and the landlord can get
possession of the building only if he
establishes one or the other ground
mentioned in sub-section (2) of Section 20
against each of the heirs of original tenant.
One
of
the
well-settled
rules
of
interpretation of statute is that it should be
interpreted in a manner which does not
lead to an absurd situation.

23. It appears to us, in the case of
H.C. Pandey v. G.C. Paul [(1989) 3 SCC
77] it was rightly said by this Court that
after the death of the original tenant,
subject to any provision to the contrary, the
tenancy rights devolve on the heirs of the
deceased tenants jointly. The incidence of
the tenancy is the same as those enjoyed by
the original tenant. It is a single tenancy
which devolves on the heirs and there is no
division of the premises or of the rent
payable therefor and the heirs succeed to
the tenancy as joint tenants."

30. In this view of the matter, this
Court finds no infirmity in the holding of
the two Authorities below.

31. This brings to the forefront the
issue of bona fide need, which has again
been concurrently answered in favour of
the landlord by the two Authorities below.
The learned Counsel for the tenants has
been unsparing in his criticism of the
findings that the Authorities below have
recorded on the issue of bona fide need.

32. It is argued that the findings of the
Authorities below, including the Appellate
Authority, are vitiated on the issue of bona
fide need for non-consideration of material
evidence on record. The learned Counsel
for the tenants has argued that the finding
of the Appellate Authority, in particular, is
vitiated, because he did not consider the
report of the Civil Court Amin and the
sanctioned map, which was directed to be
kept on file vide order dated 25.08.2017,
both relating to the demised shop and the
constructions made above it by the
landlord. It is urged that if the said
document taken into consideration, the
conclusions of the Appellate Authority
would be different. It is next submitted that
from the evidence on record, it is pellucid
that the landlord's son has his business in
the Sarrafa Bazar. He is not employed.
Besides, there are a number of other vacant
shops available with the landlord, where he
can house his son's business, if he desires to
establish an independent one.

33. The learned Counsel for the
landlord has refuted above submissions and
says that the landlord's son, Mukesh Kumar
is unemployed. The two Authorities below,
on the basis of evidence of record, have
opined that the landlord's son, though
educated, is unemployed. No doubt, the
landlord has admitted in his crossexamination that he has shops in different
localities, but most of these are occupied.
He has two shops in Mohalla Jai Prakash
12 All. Awadesh Kumar & Ors. Vs. Rameshwar Dayal (Deceased) & Ors.
539
Nagar, where he has his residential house.
Both the shops are not vacant. The landlord
has admitted that he has purchased a plot of
land by the roadside, but there is no
construction raised thereon. In Mohalla
Patel
Nagar,
the
landlord
has
acknowledged that he has four shops. Out
of these, in two, his elder son carries on his
jewellers business and the other two are
occupied by tenants. It is the landlord's
specific case, by which he has stood in his
cross-examination, that his younger son,
Mukesh does not work in the shop along
with his elder brother, Sanjay. The landlord
has further admitted that he had five shops
in Mohalla Jawahar Nagar. One of the said
shops has been sold out. This leaves a
residue of four with the landlord. The
Appellate Authority has opined that the
bona fide need of the landlord's younger
son is there, who is unemployed and has a
family. It has been further opined that
merely because the landlord has other
premises or plots, his release application
cannot be rejected.

34. This Court has carefully considered
the matter and noticed the stand of the
landlord in the cross-examination. The stand
of the tenants too will be shortly noticed. The
foremost question to be considered is whether
the landlord's son is indeed unemployed. The
landlord has said it on affidavit that Mukesh
is unemployed and a married man, who is in
need of a source of livelihood. His elder
brother is settled in the jewellers' business
and that is Mukesh's aspiration too. There is
no reason to disbelieve the landlord's
assertion that his son Mukesh is unemployed.
There is no evidence brought on record to
establish that Mukesh is engaged in some
gainful occupation.

35. In his affidavit dated 17.08.2015,
Awadesh Kumar has stated that Mukesh
Kumar does not require the demised shop
and he is not unemployed. Rather, he is
gainfully employed. Mukesh Kumar has
eight vacant shops in Mohalla Jawahar
Nagar, newly constructed, that are situate
close to the main market. Mukesh Kumar is
free to establish his business in the said
shops. It is also said in Paragraph No. 9 of
his affidavit that the landlord has purchased
a new shop in the name of his wife at
Mohalla Jai Prakash Nagar and already has
another two there, out of which one is
vacant. In any of the said shops, Mukesh
Kumar can conveniently establish his
business. It is also said in the same
paragraph of his affidavit by Awadesh
Kumar that in Mohalla Patel Nagar, the
landlord has four shops, where in two of
these, his sons, Sanjay Soni and Mukesh
Kumar are engaged in the jewellers' trade.
In his cross-examination, this witness has
said that Mukesh is married and he has two
shops in Mohalla Patel Nagar. The
landlord's elder son, Sanjay and Mukesh do
business together. Both the brothers and
their families live together.

36.

Appreciating
the
aforesaid
evidence, the Authorities below have
opined that Mukesh Kumar is not gainfully
employed. It is clear that the tenant has not
been able to point out how Mukesh is
gainfully employed. There is a distinction
between the availability of accommodation
with the landlord, where an adult member
of his family can establish his business and
the fact that the member of his family, for
whose requirement the landlord seeks
release of an accommodation, is actually in
gainful employment. The inference of bona
fide need is to be drawn from the latter fact
and not the former. If the landlord is able to
show that an adult member of his family is
not in gainful employment, or even in
stable
gainful
employment,
that
is
540 INDIAN LAW REPORTS ALLAHABAD SERIES
independent, it is not for the tenant to show
and say that another accommodation, that is
available with the landlord, can be utilized
for the purpose. Here, there is no positive
evidence against the landlord's categorical
assertion to the effect that Mukesh Kumar
is in actual gainful and stable employment
of his own.

37.