# Babu Singh v. XIII Addl. District Judge, Kanpur Nagar and another

- **Citation:** (2001) 2 ILRA 269
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-01-21
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-singh-v-xiii-addl-district-judge-kanpur-nagar-and-another-39894
- **Pages:** 6

## Text

2All] Babu Singh V. XIII Addl. District Judge, Kanpur Nagar and another
269
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By the Court

1. The dispute relates to premises no
107/268 Brahma Nagar, Kanpur. Rudra
Sen
Bajpai-respondent
no.
2
had
purchased the said house in the year 1977
from one Smt. Rani Devi. The house
consisted
of
two
Kotharies
and
a
Khaprail. One of the Kotharies was under
the tenancy of Smt. Siromani Devi and
the other was under the tenancy of late
Dev Singh and the tiled (Khaprail)
accommodation was in occupation of
Doodh Nath Singh as tenant. Rudra Sen
Bajpai, who happens to be a practicing
Advocate on the criminal side filed a
petition
for
release
of
the
accommodations, aforesaid, under the
provisions of clauses (a) and (b) of subsection (1) of Section 21 of the U.P.
Urban Buildings (Regulation of Rent,
Eviction and Letting) Act, 1972 (Act no.
XIII of 1972) (hereinafter referred to as
'the Act') for the purposes of construction
of a garage and office, registered as P.A.
case no. 820 of 1980. The release petition
was dismissed by the learned Prescribed
Authority by order dated 27.03.1982. The
respondent no. 2 landlord preferred an
appeal under section 22 of the Act (Rent
Appeal No. 156 of 1982) which was
partly allowed by order dated 11.04.1983,
inasmuch as, khaprail in occupation of
Doodh Noath Singh tenants was released
and in respect of the two other tenants, the
appeal was dismissed. The appellate court
appeared to be of the view that the
landlord may conveniently have his office
constructed over the roof of the garage.
The landlord filed a writ petition no. 9078
of 1983, which has been allowed by this
court by order dated. 21.01.2000 whereby
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
270
the order dated 11.04.1983 passed in
appeal
was
quashed
and
the
13th
Additional District Judge was directed to
consider the appeal afresh keeping in
view the observations made in the body of
the decision. Two specific observations
were made by this court in the body of the
judgement, firstly, that the appellate
authority did not examine the opinion of
the Engineer and the report of the
Advocate Commissioner, in relation to
two other accommodations in respect of
which, the release petition was dismissed
even though these two accommodations
were adjoining to the third one about
which
release
petition
was
allowed
though they were of the same age and
secondly,
the
question
whether
an
Advocate of long standing can suitably
and conveniently have his office on the
roof of the garage.

2. The learned XIIIth Additional
District Judge, Kanpur Nagar decided the
appeal no. 156 of 1982 afresh by the
impugned order dated 9.1.2001 He has
found that the need of the landlord to get
all the three tenanted accommodations in
premises no. 107/268 Brahma Nagar
Kanpur was bona fide and that the
balance of hardship tilted in his favour
and accordingly allowed the release
petition. It appears that the tenant Doodh
Nath Singh had handed over possession of
the tenanted accommodation in respect of
which the release application was allowed
by the appellate court on 11.04.1983. Smt.
Siromani Devi has also not challenged the
release order passed in appeal.

3. The petitioner is the son of Late
Dev Singh, tenant in Kothari at a monthly
rent of Rs. 15/-. After the death of Dev
Singh, his legal heirs were impleaded as
respondents nos. 4 to 11 in appeal. Some
of the substituted respondents as legal
heirs of Dev Singh also died and one of
them was married outside the family.
Babu Singh, the present petitioner was
respondent no. 4 in appeal. He has
challenged the order dated 9.1.2001 by
filing the present writ petition.

4. Counter and rejoinder affidavits
have been exchanged. Heard Sri Vinod
Mishra, learned counsel for the petitioner
and Sri R.K. Saxena appearing on behalf
of the respondent no. 2, at considerable
length.

5. To begin with, it may be
mentioned that the order of release passed
against Smt. Siromani devi and Doodh
Nath Singh has become final. Babu Singh
son of late Dev Singh tenant has
challenged the order of release passed in
appeal primarily on the ground that the
learned appellate court has misdirected
itself as it has observed that it would
confine its findings and limit the decision
only to the two aspects covered by the
observations made by this court in order
dated 21.01.2001 in Civil Misc. Writ No.
9078 of 1983 and shall not look into the
bona fide need of the landlord as it has
already been determined by this court. Sri
Vinod Misra, learned counsel for the
petitioner urged that since the order dated
11.04.1983 passed in appeal no. 156 of
1982 had been quashed it was expected
and required of the lower appellate court
to decide the case afresh taking into
consideration all the grounds which have
been taken by late Dev Singh, tenant to
oppose the release petition. Sri R.K.
Saxena, Advocate for the landlord took
me through the decision of the lower
appellate
court
dated
9.1.2001
and
pointed out that the lower appellate court
has considered all the material on record
2All] Babu Singh V. XIII Addl. District Judge, Kanpur Nagar and another
271
placed by the parties and after taking into
consideration the entire evidence has
independently come to the conclusion that
the need of the landlord for his office and
garage is bona fide, genuine and pressing.
It was maintained on behalf of the
landlord that the lower appellate authority
has not restricted his decision to any
particular point or was not, in any
manner, swayed away to confine his
findings in the light of the observations
made by this court.

6.

I
have
given
thoughtful
consideration to the matter and have
waded through the entire judgement
delivered by the IIIrd Additional District
Judge, Kanpur Nagar on 9.1.2001 in Rent
Appeal No. 156 of 1982 and find that the
submissions made by Sri Vinod Misra are
wide off the mark. This court by order
dated 11.04.1983 meaning thereby the
order passed earlier in appeal became non
existent and since learned Prescribed
Authority has dismissed the release
petition, it was to be decided in appeal
whether the need of the landlord to get the
disputed accommodations released for
constructing garage and an office was
bona fide or not and if the need was found
to be genuine, what was the balance sheet
of the hardship. A reading of the
impugned
judgement
dated
9.1.2001
undoubtedly indicates that the lower
appellate authority found itself shackled
with the observations made by this court
in order dated 21.1.2000 passed in Civil
Misc. Writ No. 9078 of 1983 and initially
seem to have taken the view that since the
bona fide need of the land-lord has
already been accepted by this court, it is
not required to be gone into. As one
proceeds to read the judgement as a
whole, it would become apparent and
clear that the lower appellate court did not
confine its decision to the observations
made by this court and instead thereafter
dealt with the bona fide need of the
landlord and its genuineness and has also
dealt with the question of hardship. The
case has been approached by the lower
appellate court in its true perspective
uninfluenced by the observations made by
this
court.
The
moot
points
for
consideration before the lower appellate
court were:

(i) Whether in view of the opinion
of the Engineer/Advocate Commissioner,
was it appropriate and justified to allow
the landlord's application in respect of
one particular portion and to reject the
same in respect of the other portions in
spite of the fact that the age of all the
portions as one unit was one and the
same;

(ii) Whether
the
need
of
the
landlord to have a garage and separate
office is bona fide and genuine.

(iii) Whether
the
need
of
the
landlord
could
be
satisfied
by
constructing the office on the roof of the
garage on the released portion which was
earlier in the tenancy of Doodh Nath
Singh, and

(iv) Balance sheet of hardship.

The lower appellate court has addressed
itself and adverted to all the above
questions independent and uninfluenced
by the observations made by this court.
On all the above points, the lower
appellate court has recorded the findings
in favour of the landlord.

7. Lest there be any confusion about
the decision of the lower appellate court, I
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
272
have myself appraised the matter in my
quest to reach the truth. It is an
indubitable fact that the landlord has been
in active criminal practice for the last
about one quarter of the century. He has
been paying income tax since the year
1964. He is having his residence in a
house in Nehru Nagar Kanpur Nagar. He
as a practicing Advocate wants to
maintain his separate office and to
construct a garage for his own car. His
requirement to have separate office after
such a long standing practice cannot be
said to be fanciful or imaginary. The
suggestion that the family of the landlord
presently
comprised
of
only
three
members,
i.e.
himself, wife and a
daughter and, therefore, he can continue
to run the office from his residential
house does not appear to be acceptable. It
is true that presently the landlord, his wife
and unmarried daughter are sharing the
residential house at Nehru Nagar but the
fact remains that some of the members of
the landlord who are living outside the
city cannot be treated to have abandoned
their claim to live with the family in the
residential house. Here, it is not the
question
whether
the
landlord
has
sufficient accommodation at his disposal
in the residential house to maintain office
as an Advocate but the point germane for
determination is whether a practicing
Advocate is entitled to have his office
apart from his residence in the tenanted
house which he has purchased for the
specific purpose (i.e., for constructing the
garage and the office). An Advocate
undoubtedly is required to have a separate
office which may have enough space to
house
a
library,
record
room,
to
accommodate his juniors and clerks
besides place for consultation with clients
and
waiting
room
for
the
clients.
Maintenance of office in residential
premises, undoubtedly inundates privacy.
For a comfortable and peaceful living of
the family members, it is necessary to
maintain the professional office at some
distance. Imbued with this feeling, the
landlord had purchased the property in
question, being premises no. 107/268
Brahma Nagar. It is the innate desire of
every
owner/landlord
to
utilize
the
property purchased by him keeping in
view the standard of life which he has
attained and the convenience of all other
family members. The suggestion made on
behalf of the petitioner that the landlord
may have his office on the roof of the
garage is not acceptable. No tenant can
compel or force the landlord to live in a
particular manner and to utilize his
property. by dictating or suggesting
certain alternatives. It is for the landlord
to decide whether he wants to have his
office on the roof of the garage or
separately. The dimensions of the garage
have certainly to be small than the
accommodation required for office. A
spacious office with its appendages
cannot be constructed over the small roof
of the garage. Moreover, it may not be as
convenient to have an office on the first
floor. If it is located on the ground floor it
may be easily accessible from the road
side.
Looking
to
the
facts
and
circumstances of the case, there can be no
quarrel with the finding recorded by the
lower appellate court that the need of the
landlord to have a separate garage and an
office is bona fide and genuine and that it
would be highly inconvenient for a lawyer
of the standing of the present landlord to
have a small office on the roof of the
garage. In a number of decisions of this
court, the need of a practising Advocate to
have separate office has been held to be
bona fide. A reference may be made to
the decision in Sarlan Singh V. IXth
2All] Babu Singh V. XIII Addl. District Judge, Kanpur Nagar and another
273
Additional District Judge, Kanpur and
others- 1995 (1) A.R.C.-200 and Abdul
Hafeej Khan and another Vs. IIIrd
District Judge and other.- 1998 (1)
A.R.C-96 A lawyer cannot set up his
practice unless he has a chamber with
office and the people in general know
place of his availability. In any case, as
said, the tenant cannot dictate that the
landlord may have his office on the roof
of the garage.

8. The landlord is the master of his
convenience. It is for him to decide where
he
wants
to
maintain
his
office.
Conjectural alternatives as suggested by
the tenant are of no consequence. It would
be appropriate to make a reference to the
decision of the apex court in Mrs. Meenal
Ekanath Kshirshagar Vs M/s Traders
and Agencies and another - J.T. 1996 (6)
S.C.- 468 in which it has been held that
landlord is the best judge of his residential
requirement and it is for him to decide
how and in what manner he would live. In
Harnam Singh Vs. Raksha Rani and
others - 1997 All. C.J.-1493, the question
of bona fide requirement of the landlord
was contested on the ground that he was
having other houses which were found to
be not fit for habitation. It was found by
the apex court that it could hardly be said
that the landlord does not bona fide
require
the
premises
for
personal
occupation because he owns houses not fit
for habitation. An inspiration may be
drawn from the said decision that if the
residential house with the landlord is not
fit for maintaining office for the variety of
reasons indicated by the lower appellate
court, it cannot be said that the need of the
landlord
to
have
the
tenanted
accommodations vacated for the purposes
of constructing garage and separate office
is not bona fide.
9. Though in every case of eviction
some sort of hardship is to be faced by the
tenant, in the instant case, balance of
hardship tilts much more in favour of the
landlord rather than the petitioner for one
simple reason that the petitioner-tenant is
residing in House No. 104/A/46 Rambagh
Kanpur.
He
is
using
the
disputed
accommodation for his Baithaka and for
running a tea shop on the Chabutra in
front of it which is said to be the only
source of his livelihood. The litigation
between the parties is going on for the last
more than two decades. During this long
period, the petitioner does not appear to
have taken any concrete steps for finding
out an alternative accommodation. To
mitigate the hardship, the petitioner may
put up the tea shop in or in front of the
premises where he resides in Rambagh,
Kanpur. He has certainly no right to stick
to the tenanted accommodation to the
serious detriment of the landlord.

10. So far as the release application
under clause (b) of sub- section (1) of
Section 21 of the Act is concerned, the
lower appellate court has appraised the
opinion of the Engineer and the report of
the Advocate Commissioner and has
recorded a finding of fact that the
accommodation in occupation of the
petitioner as well as other two tenants is
in dilapidated condition and is required to
be demolished for reconstruction. The
landlord has fulfilled all the conditions
required for release of the accommodation
under clause (b). The finding recorded by
the lower appellate court cannot be
faulted on any ground.

11. In the conspectus of the above
facts, the petition turns out to be without
any merits and substance. The order of
release passed by the lower appellate
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
274
court suffers from no legal infirmity and,
therefore, it has to be upheld.

12. Lastly, it was urged by the
learned counsel for the petitioner that the
lower appellate court has not awarded any
amount of compensation to the petitioner
for vacating the released accommodation.
In para 14 of the counter affidavit, the
landlord has expressed his willingness to
pay the requisite amount of compensation
to the petitioner. I feel that a sum of
Rs.5000 (Rupees Five Thousand only)
should
be
appropriate
amount
of
compensation which the landlord is
required to pay to the petitioner tenant for
vacating the released accommodation.

13. The writ petition is dismissed
without any order as to costs. It is
however, made clear that the order of
release passed by the lower appellate
court on 9.1.2001 in rent appeal no. 156
of 1982 arising out of P.A. case no. 820 of
1980 shall become executable soon after
the landlord pays a sum of Rs. 5000/-
(Rupees
Five
Thousand
only)
as
compensation to the petitioner and if he
refuses to accept, deposits the same with
the Prescribed Authority.

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By the Court

1. The case of the petitioner - Sushil
Kumar Dubey, who is Sub Inspector of
Police and was, at the relevant time,
posted in district Agra was recommended
for out of turn promotion pursuant to the
Government order no. 665 (1) Pi-1-24/94
dated 3.2.1994 for having displayed
exemplary courage and bravery risking
his own life in the course of an encounter
with a dreaded and notorious criminal,
namely, Alya alias Ali Mohd. alias Pappu
Pahalwan. The incident had taken place in
the following circumstances.

2. On 19.1.1997, a prominent
businessman- brick kiln owner and leader