# Damodar Das v. Ram Swaroop Ghura

- **Citation:** (2022) 4 ILRA 695
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-21
- **Case number:** Writ-A No. 60201 of 2012
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/damodar-das-v-ram-swaroop-ghura-48296
- **Pages:** 11

## Headnote

A. Civil Law - Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 (U.P. Act No. 13
of 1972) - Release Application u/s
21(1)(a) - Title dispute - it does not lie
in the tenant's mouth to question the
right of the landlord to seek release of
the demised shop by importing a title
dispute into proceedings for eviction -
Held - there was no inter se dispute
between the co-sharers as to which shop
has fallen to whose share - rather the
stand was that the demised shop has
fallen to the share of the landlord in
terms of a family settlement- approach
of the Appellate Authority in holding
against the landlord with reference to
non-establishment of the factum of
partition, cannot be countenanced (Para
18)
696 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Civil Law - Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (U.P. Act No. 13 of
1972) - Release Application u/s 21(1)(a) -
subsequent events can be taken note of in
proceedings for release, where release
proceedings had been pending for long -
to shorten the litigation High court may
itself decide the litigation (Para 27)

Prescribed Authority rightly on the basis of
relevant evidence, recorded that the demised
shop i.e. shop No.193 alone was available to the
landlord to set up his independent business -
Further subsequent event was that the original
Tenant, passed away pending petition - all his
heirs well settled in business and have a threestoreyed shop - Nothing placed on record to
show that the tenant's heir have taken over his
business in the demised shop - they would not
suffer any hardship by an order of eviction. -
High court directed the tenants to handover
peaceful and vacant possession of the demised
shop to the landlord

Allowed. (E-5)

List of Cases cited:-

## Text

4 All. Damodar Das Vs. Ram Swaroop Ghura
695
with. The parties must state forthwith
sufficient factual details to the extent that it
reduces the ability to put forward false and
exaggerated claims and a litigant must
approach the Court with clean hands. It is
the bounden duty of the Court to ensure
that dishonesty and any attempt to surpass
the legal process must be effectively curbed
and the Court must ensure that there is no
wrongful, unauthorized or unjust gain to
anyone as a result of abuse of the process
of the Court. One way to curb this tendency
is to impose realistic or punitive costs."

27. Having considered the factual
aspect of the case and the dictum of the
Supreme Court, I am of the considered
view that the applicants have misused the
process of law by filing application under
Section 482 Cr.P.C. on false facts that the
matter has been compromised. Honesty,
fairness, purity of mind should be of the
highest order to approach the court, failing
which the litigant should be shown the exit
door at the earliest point of time.

28. In view of the verbose discussion,
the application is dismissed with costs,
which is quantified at Rs. 100,000/- (rupees
one lac ) to be deposited by the applicants
within 45 days with the Registrar General
of this Court, failing which the same shall
be recovered from the applicants as arrears
of land revenue. On depositing the said
amount, Rs. 50,000/- (rupees fifty thousand
only) shall be released in favour of the
complainant/opposite party No. 2 and
remaining
Rs.
50,000/-
(rupees
fifty
thousand only) shall be forwarded by the
Registrar General of this Court to the
account of Rajkiya Bal Greh Shishu,
Allahabad being Account No. 3785336735,
State Bank of India, Khuldabad Branch,
Prayagraj, IFSC Code SBI N0002560,
Micro Code 211002015, which shall be
used for the welfare of the children.

29. Office is directed to place a copy
of this order before the Registrar General of
this Court for compliance.
----------
(2022)04ILR A695
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2022

BEFORE

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

Writ-A No. 60201 of 2012

Damodar Das ...Petitioner
Versus
Ram Swaroop Ghura ...Respondents

Counsel for the Petitioner:
Sri A.N. Bhargava, Sri Arvind Srivastava, Sri Atul
Dayal, Sri Pushkar Srivastava, Sri Ravindra
Srivastava

Counsel for the Respondents:
Sri Pankaj Agarwal

A. Civil Law - Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 (U.P. Act No. 13
of 1972) - Release Application u/s
21(1)(a) - Title dispute - it does not lie
in the tenant's mouth to question the
right of the landlord to seek release of
the demised shop by importing a title
dispute into proceedings for eviction -
Held - there was no inter se dispute
between the co-sharers as to which shop
has fallen to whose share - rather the
stand was that the demised shop has
fallen to the share of the landlord in
terms of a family settlement- approach
of the Appellate Authority in holding
against the landlord with reference to
non-establishment of the factum of
partition, cannot be countenanced (Para
18)
696 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Civil Law - Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (U.P. Act No. 13 of
1972) - Release Application u/s 21(1)(a) -
subsequent events can be taken note of in
proceedings for release, where release
proceedings had been pending for long -
to shorten the litigation High court may
itself decide the litigation (Para 27)

Prescribed Authority rightly on the basis of
relevant evidence, recorded that the demised
shop i.e. shop No.193 alone was available to the
landlord to set up his independent business -
Further subsequent event was that the original
Tenant, passed away pending petition - all his
heirs well settled in business and have a threestoreyed shop - Nothing placed on record to
show that the tenant's heir have taken over his
business in the demised shop - they would not
suffer any hardship by an order of eviction. -
High court directed the tenants to handover
peaceful and vacant possession of the demised
shop to the landlord

Allowed. (E-5)

List of Cases cited:-

1. Sajal Kumar Jauhari Vs District Judge, Ballia
& ors. , 2016 SCC OnLine All 2541

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

3. Ram Kumari Barnwal Vs Ram Lakhan (Dead),
2007 (68) ALR 136

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

1. This is a writ petition by the
landlord,
who
was
successful
in
proceedings for release under Section
21(1)(a) of the U.P. Act No. 13 of 1972
(for short, 'the Act') before the Prescribed
Authority, but failed before the Appellate
Authority.

2. Damodar Das, the landlord filed for
release of shop bearing No.193, situate at
Mohalla Sarrafa Bazar, Jhansi, under
Section 21(1)(a) of the Act, that was in the
tenancy occupation of Ram Swaroop
Ghura. The application was registered on
the file of the Prescribed Authority/ Judge,
Small Cause Court, Jhansi as P.A. Case
No.63 of 2007.

3. The landlord's case in brief was that
he is the owner and landlord of shop No.193
aforesaid (for short, 'the demised shop'). The
demised shop had fallen to his share in a
family settlement. Ram Swaroop Ghura, who
shall hereinafter be referred to as 'the tenant',
was in occupation thereof on a monthly rent
of Rs.100/-. The tenancy commences on the
24th of each English Calendar month and
ends on the 23rd following. The tenant has
not paid rent since 25th January, 2000 and is
in default. Separate proceedings are being
taken on that ground. The landlord has no
other shop available to him, except the
demised shop. He needed the demised shop
for his personal use and occupation. The
landlord so far does business in the shop
owned by his brother Bhagwat Prasad. The
landlord's brother aforesaid is now asking
him to separate and vacate his shop at the
earliest. The landlord is a married man. He
has a family comprising his wife and three
children, whom he has to provide for. The
landlord has no other shop available to him
except the demised shop, whereas the tenant
has another shop located at Bajaja Bazar,
Jhansi. If the tenant is asked to vacate the
demised shop, he would not suffer any
hardship. The tenant seldom sits in the
demised shop. For the most part, the shop is
without business. It is on these allegations
that the landlord prayed that the shop be
released in his favour on the ground of his
bona fide need.

4. The tenant filed a written
statement, traversing the landlord's case. It
4 All. Damodar Das Vs. Ram Swaroop Ghura
697
was asserted that the application for release
has been made by the landlord in
connivance with his brothers for the
ulterior
purpose
of
securing
an
enhancement of rent. The landlord has no
need for the demised shop and is not
without occupation. He has a prospering
business in shop No.192, Sarrafa Bazar,
Jhansi, which is a very big shop. In the said
shop,
the
landlord
sells
herbs
and
medicines, besides dealing in supply of
acid. No family partition between the
landlord and his brothers has taken place.
The brothers together have a number of
shops available to them. Shop No.192 is in
the exclusive occupation of the landlord,
where he does business. In addition, the
landlord utilizes his house bearing No.42/1,
Gopal Nikhri, Gola Kunwa, Jhansi, where
he does wholesale trade as well as retail in
spices and dry fruits. The landlord does not
need to do any other business nor has he
got time to engage in other business. The
landlord has constructed a big godown that
is part of shop bearing No.192, where he
stocks substantial quantity of goods. The
landlord's brother, Bhagwat Prasad does
not do business in shop No.192, but has his
business under the name and style of Bahi
Company. The other brothers of the
landlord have their independent shops. The
demised shop was earlier held by the tenant
on a rent of Rs.17.50 per month, but later
on the landlord and his brother got it
increased to Rs.100/- per month and ever
since, the tenant is paying the said rent to
Bhagwat Prasad. Upon service of notice by
the landlord to pay him rent, the tenant paid
it to him, but later on the landlord refused.
In consequence, the tenant has deposited
rent under Section 30 of the Act before the
Civil Judge (Jr. Div.), Jhansi.

5. It is also the tenant's case that he is
a tenant in the demised shop for the past 70
years and has established business that
commands goodwill. In the event, the
tenant is evicted from the demised shop, his
business would be ruined, besides the loss
of goodwill. It is also the tenant's case that
the landlord's grandmother, Smt. Chhita
Bai had earlier instituted proceedings for
release under Section 21(1)(a) of the Act,
being Case No.95 of 1985. In the said case,
the landlord's grandmother could not prove
her case, but entered into a compromise, in
consequence whereof, rent was increased
from Rs.17.50 per month to Rs.100/-. The
tenant also says that the disposition of the
earlier
case
between
the
landlord's
grandmother and himself as aforesaid
works to bar the present proceedings as res
judicata. There is a further pleading by the
tenant to the effect that post institution of
the present proceedings, he made efforts to
search alternative accommodation, but
despite substantial efforts, he did not find
any vacant shop. It is also averred that there
is no possibility of finding an alternative
shop that would be within the financial
capacity of the tenant to bear the burden of
rent. It is also pleaded that by grant of the
release application, the tenant would suffer
greater hardship than that suffered by the
landlord in the event of refusal.

6. In support of his case, the landlord
filed his own affidavit besides those of his
brothers Bhagwat Prasad and Rajesh. In
addition, an affidavit of Santosh Kumar
Patel, counter affidavits of the landlord
Damodar Das bearing paper No.61A, 90C
and 109A have also been filed. Along with
the counter affidavit of Damodar Das,
paper No.61A2, a photostat copy of Form15 and a photostat copy of the registration
certificate has been filed as Annexure B.
Together with the affidavit of Damodar
Das bearing paper No.90C2, a photostat
copy
of
the
registration
from
the
698 INDIAN LAW REPORTS ALLAHABAD SERIES
Commercial
Tax
Department
and
a
photostat copy of the licence have also
been annexed. A number of documents
have also been filed, which includes money
order receipts, telephone bills, electricity
bills, besides bills from the water works, a
certified copy of the sale deed, a photostat
copy of the ration card, money order
coupons, a photostat copy of the order
passed in M.A. Case No.9 of 2003. There is
a moreful and complete description of the
evidence to be found in the impugned
judgment,
not
necessitating
further
reference to a summary thereof.

7. Likewise, affidavits were filed on
behalf of tenant, Ram Swaroop Ghura
bearing paper no.24C2 and 27A2 with
annexures being a photostat copy of the
licence, money order receipts etc., a
photostat copy of an affidavit of one Rahul
Agarwal together with an annexed bill, an
affidavit of Birjesh Kumar Vishwakarma
bearing paper no.29A2, besides an affidavit
from Ram Swaroop. Documents too have
been filed on behalf of the tenant, that
includes
a
certified
copy
of
the
Commission report bearing paper no. 32C1,
a certified copy of the application giving
rise to P.A. Case No.95 of 1985 being
paper No.31C, a copy of the order passed
in the case aforesaid, notices from the Sale
Tax and the Labour Department, rent
receipts and a copy of the notice bearing
paper No. 98C1. Likewise, on behalf of the
tenant, there is much evidence led, the
details whereof find mention in a summary
set out in the judgments of the Courts
below. It does not require any further
elucidation, except what is relevant and that
would be noticed during the course of this
judgment.

8. The Prescribed Authority allowed
the application for release, holding that the
issue raised about lack of proof of partition
within the family and the demised shop
falling to the landlord's share is something
which was not open to the tenant to
question, given the fact that there is no
dispute about the partition between the coshares-brothers. It was also held that the
tenant had acknowledged the landlord and
paid him rent, which he later on deposited
in Court, pleading a case of refusal to
receive rent. It was further held that the
landlord's need was bona fide as that was
the only shop available to him. The finding
is based on an extensive survey of the
shops available to the family and the
position of their occupancy by various
members/ brothers and nephews of the
landlord. The case of the tenant that the
landlord was doing business in shop
No.192 exclusively and not along with his
brother was discarded by the Prescribed
Authority. Bona fide need was also found
in favour of the landlord and against the
tenant.
The
shop
in
Sarrafa
Bazar
(described elsewhere as Bajaja Bazar) was
held to be one purchased in the name of the
tenant's
daughter-in-law,
Smt.
Karuna
Devi, where the tenant's son was doing
business in cloth, a finding based on some
admission in the tenant's affidavit 27A2
and 76A2. Efforts made to search an
alternative
accommodation
was
not
believed by the Prescribed Authority, as it
was bereft of details about the efforts made.

9.

The
Prescribed
Authority's
judgment granting release on 22.09.2009,
was reversed in appeal by the Appellate
Authority by his judgment and order dated
09.08.2012, rendered in Rent Control
Appeal No.15 of 2009. It is this judgment
of the Appellate Authority/ Additional
District Judge/ Special Judge (E.C. Act),
Jhansi that the landlord has impugned in
the present writ petition before us.
4 All. Damodar Das Vs. Ram Swaroop Ghura
699

10. Heard Mr. Atul Dayal, learned
Senior Advocate assisted by Mr. Ravindra
Srivastava,
learned
Counsel
for
the
landlord and Mr. Pankaj Agarwal, learned
Counsel appearing on behalf of the tenant,
now represented by his LRs.

11. It must be remarked here that the
tenant Ram Swaroop Ghura, passed away
pending this appeal and his heirs and LRs
have been substituted, who are his son Sia
Saran, his two daughters, Pista Devi and
Meera Devi and the tenant's widow Prema
Devi. The substitution was carried out in
the year 2018 on the basis of an application
made in the year 2016. The tenant died on
05.11.2015.

12. Before this Court, substantial
affidavits have been exchanged, that is to
say, the counter affidavit and the rejoinder
affidavit dated 09.08.2015 and 20.08.2015.
Both these affidavits relate to the time
when the tenant Ram Swaroop Ghura was
alive. There is no further material placed,
on record on account of the event of
Ghura's supervening death, about the
affairs of the tenant's business in the hands
of his heirs. It has not been indicated by
any further affidavit whether the tenant's
son, his widow or daughters are carrying on
the tenant's business in the demised shop.

13. The Appellate Authority has held
that the landlord has failed to prove that the
demised shop, out of all the shops available
to the co-sharers/ brothers, has been the
subject matter of a family partition and
fallen to his share. Thus, the Appellate
Authority has virtually held that the
landlord is not entitled to maintain the
present release application for his bona fide
need, because he has not been able to
establish that he is exclusively the landlord
vis-à-vis the demised shop. In reaching this
conclusion of his, the Appellate Authority
has gone into unnecessary details about the
factum and the validity of a family partition
as if it were a title matter between cosharers. Admittedly, the demised shop,
along with a number of others, belonged to
the joint family, of which the landlord is a
member. The Appellate Authority has held
that the burden to prove the factum of
partition lay upon the landlord. It has been
remarked that though it has been asserted
by the landlord that a family settlement has
taken place, wherein the demised shop had
fallen in his share, the landlord has not
mentioned the date, month and year of the
settlement. He has not produced any
written document or contract evidencing
the settlement or a decree of Court. It has
then been observed that admittedly, the
original owner and landlord of the demised
shop was the landlord's grandmother,
Chhita Bai, who had instituted proceedings
for release against the tenant under Section
21(1)(a) of the Act vide Case No.95 of
1985.
These
proceedings
ended
in
compromise with an increase in the rent to
Rs.100/- per mensem. After Chhita Bai's
death, her son Chhakilal would become the
owner and the landlord.

14. The Appellate Authority has
observed that there is no averment when
Chhakilal passed away and also that in the
landlord's affidavit paper No.61A, though it
is said that the brothers have mutually
partitioned
the
properties,
it
is
not
mentioned whether the settlement/ partition
took place during the lifetime of their father
or after his death. It has also been noticed
that Bhagwat Prasad has stated in his
affidavit paper No.62A that the landlord are
five brothers, amongst whom a settlement
by word of mouth took place during the
lifetime of their father. But, he too does not
mention when the father passed away. The
700 INDIAN LAW REPORTS ALLAHABAD SERIES
Appellate Authority has gone into what
seems to be an irrelevant inquiry to say that
if the family settlement took place during
the father's lifetime, it is not shown or
detailed, which property came to the
father's share and which of it went to the
brothers. The Appellate Authority has also
noticed a document from the Commercial
Tax Department dated 16.01.2009, which
shows that shop No.192 was registered
with them as a general merchant and
pharmaceutical store in the name of
Bhagwat Prasad, who held TIN number
with reference to the said premises. It has
been remarked that this document is one
created during the pendency of litigation
and, therefore, of no worth. Another
document paper No.10A/5, a certified copy
of an order by the Assistant Commissioner
for the year 1981-82 has been taken note of
by the Appellate Authority. Still another
certified copy bearing paper No. 117C has
been noticed, which shows that the shop
bearing No.192 was registered since
24.09.1982 in the name of Bhagwat Prasad,
the landlord's brother. It has been remarked
that this document would show that
Bhagwat Prasad was recorded with the
Labour Department as the owner/ occupier
of shop No.192 since the year 1982, but the
Appellate Court has reasoned that the
family settlement is said to have taken
place prior to 1982, which would make it
thirty years old.

15. It is then remarked that the
landlord's
grandmother
had
instituted
proceedings against the tenant for release in
the year 1985, which would show that until
then, no partition had taken place, but with
the Labour Department, the name of
Bhagwat Prsad was registered as the
occupier of shop No.192. It has been
opined that there is no possibility of a
partition by mutual settlement taking place
between the brothers ante-dating the time
that their grandmother, Smt. Chhita Bai
instituted proceedings for release. The
conclusions of the Prescribed Authority,
based on separate registrations for the
brothers in relation to different shops with
the Labour Department and Commercial
Tax Department to evidence a family
settlement or partition, has been held to be
flawed by the Appellate Authority on the
aforesaid reasoning.

16. This Court must remark at once
that
the
approach
of
the
Appellate
Authority
is
manifestly
illegal
and
perverse.
As
already
remarked,
the
Appellate Authority has looked into the
issue of partition amongst the family
members, or so as to speak, a family
settlement bringing about an informal
partition, as if he were seized of a title
matter inter se the co-sharers, involving
validity of the partition. The present case is
one that is a proceeding for release based
on the relationship of landlord and tenant.
There is no quarrel about the fact that the
tenant does not disown or renounce his
character as such. He also does not say that
it is not the landlord's family who are the
owners and landlords of the demised shop.
There is no evidence of an inter se dispute
between the co-sharers as to which shop
has fallen to whose share. Rather, out of the
five brothers, the stand of three is on record
in the form of affidavits, indicating that the
demised shop has fallen to the share of the
landlord in terms of a family settlement.
Such family settlements are not very formal
affairs and may be transactions continuing
over a period of time, where different
properties are divided mutually between the
various
co-sharers.
The
Prescribed
Authority has rightly noted that the tenant
too has admitted the fact that he paid rent to
the landlord acting on his demand, which
4 All. Damodar Das Vs. Ram Swaroop Ghura
701
shows that he was acknowledged to be the
landlord. It is then remarked that the tenant
has explained it by saying that a colandlord is also entitled to receive rent and,
therefore, he paid it to him. Later on, when
the landlord refused, the tenant deposited it
in Court. There is an essence, thus, no
quarrel that it is the landlord's family who
own the demised shop and now they say
that it has been allotted in a family
arrangement to the landlord. This fact, so
long as there is no co-sharer disputing it, is
not at all one that ought to be investigated
in proceedings for release. The Appellate
Authority ought not to have gone into a
hairsplitting evaluation of evidence to
determine the factum of partition for the
limited purpose of the present proceedings.
A landlord under the Act has been defined
by Section 3(j) of the Act in the following
terms:

"3. Definition.- In this Act, unless the
context otherwise requires-

(j) "landlord", in relation to a building,
means a person to whom its rent is or if the
building, were let would be, payable, and
includes, except in clause (g), the agent or
attorney, of such person;"

17. Thus, if the landlord has been
authorized by the other co-landlords to
receive rent with a stipulation that the shop
has been allotted to his share, there is no
warrant for a Court seized of release
proceedings to inquire virtually into the
factum and legality of the partition, the
manner in which the Appellate Authority
has done. This is all the more so, as there is
not a hint of an issue between the colandlords/
co-owners
about
this
arrangement/ family partition, where the
demised shop has fallen to the landlord's
share. In this connection, reference may be
made to the decision in Sajal Kumar
Jauhari v. District Judge, Ballia and
others, 2016 SCC OnLine All 2541. In the
said decision, though in the context of a
partition brought about by a Civil Court
decree passed in a partition suit, it was
observed:

"38. The applicants/landlord have
come out with the categorical submission
that the accommodation which is described
in schedule 2016_2_RCR_Rent_95_4.png
of the release application came in their
share by virtue ofthe Civil Court decree
dated 7.9.2002 passed in a partition suit
filed by the co-owners. No exception of it
can be taken in a rent control proceeding
either by the appellate court or by this
court. Moreover in the additional written
statement filed by the petitioner, there is no
averment that the disputed accommodation
is owned by the heirs of Gopal Das Mishra
or the petitioner paid rent to Gopal Das
Mishra or his heirs at any point of time.
Admittedly the petitioners are occupying
the disputed accommodation as tenant,
they, therefore, cannot question the title of
the co-owners without disclosing the name
of the actual owner or the landlord. The
petitioner cannot be allowed to challenge
the Civil Court decree on the ground that it
was obtained in a collusive suit. No other
co-owner has come forward to object the
release."

18. For the worst, assuming that no
partition has taken place, it is not the case
here that the property does not belong to
the joint family comprising the five
brothers or that the landlord is not one of
the co-owners. If, therefore, for the need of
the landlord, the other co-owners have
stood by him and supported his case for
release on the ground of bona fide need, it
does not lie in the tenant's mouth to
question the right of the landlord to seek
702 INDIAN LAW REPORTS ALLAHABAD SERIES
release of the demised shop by importing a
title dispute into proceedings for eviction.
The approach of the Appellate Authority in
holding against the landlord with reference
to non-establishment of the factum of
partition,
therefore,
cannot
be
countenanced. The issue whether the tenant
or his family members have acquired the
shop within the municipality of Jhansi is
really not of much consequence. The way
the Prescribed Authority has approached
the matter, it is evident that the tenant's son
is doing business in a shop located in the
Sarrafa Bazar, which is a three-storeyed
shop purchased in the name of his wife.
The Prescribed Authority has reasonably
concluded that the tenant's son is a member
of his family and it would lead to deemed
vacancy generally, unless certain particular
facts are proved. But this Court is not
minded to go into those facts. Even if the
tenant has no alternative shop in the
municipality of Jhansi, it cannot stand to
defeat the landlord's right to release if his
case of a bona fide need is established.

19. So far as question of bona fide
need is concerned, the Appellate Authority
has remarked that the landlord has not
mentioned in his application for release, the
number of the shop wherein he does
business along with his brother, Bhagwat
Prasad, though he has said that Bhagwat
Prasad
has
threatened
him
with
dispossession. It has been remarked that the
tenant has averred that the landlord carries
on the business of a grocer and trade in acid
in shop No.192, and besides that, also does
wholesale trade and retail in spices and dry
fruits from his house No.42/1, Gopal
Nikhra, Gola Kunwa, Jhansi. It is remarked
that in the later affidavit filed by the
landlord, it has been accepted that he does
joint business with his brother Bhagwat
Prasad in shop No.192 and it is this shop
which he is being asked to vacate by his
brother, Bhagwat Prasad. About these
allegations, the Appellate Authority has
disbelieved
paper
No.109/4
dated
16.01.2009,
which
is
a
registration
certificate issued by the Commercial Tax
Department as a document created during
litigation. The said document shows
Bhagwat Prasad's name as the proprietor of
the business in shop No.192. Another
document, paper No.109/5, which has been
issued
by
the
Assistant
Labour
Commissioner
and
is
a
registration
certificate of the year 1982 in the name of
Bhagwat Prasad with reference to shop
No.192, has been discarded by saying that
at that time, the parties' grandmother, Smt.
Chhita Bai was the owner and the landlord.
It is very strained logic that these
documents have been disbelieved to infer
that Bhagwat Prasad does not do business
in shop No.192.

20. It must be remarked that in a
family, that has a number of young men
needing
employment,
assignment
of
commercial premises is often informal to
begin with, which later on is scripted and
converted to a formal settlement and
division. Assuming that in the year 1985,
the landlord's grandmother was alive, the
fact that his brother Bhagwat Prasad was
recorded
with
the
Assistant
Labour
Commissioner as the occupier of shop
No.192 would show that the shop indeed is
one where Bhagwat Prasad does business
and not the landlord. The further finding
recorded by the Appellate Authority that
there are some receipts that show that the
landlord does business in shop No.192 are
no more than receipts of some transactions
of purchase of goods. These receipts are
not incompatible with the landlord's case of
doing business in shop No.192 along with
his brother.
4 All. Damodar Das Vs. Ram Swaroop Ghura
703

21. The other facet on which the
landlord's need has been held not to be
genuine is the business and trade in spices
and dry fruits done from the landlord's
home. It is well settled that business done
from
home,
under
compelling
circumstances, does not lead to effacement
of bona fide need of the landlord for
business premises. Of course, this is not to
say that the landlord indeed does business
from home, about which too, perverse
conclusions have been drawn. Those
conclusions are also based on some
documents
about
purchase
of
goods
relating to trade, where the landlord's
address indicated is that of his home,
situate in Nikhri Bazar, Gola Kunwa,
Jhansi. It is again a perverse conclusion to
draw that an address mentioned on some
document of purchase of goods can lead to
the inference about the premises being used
for business.

22. A trader can purchase goods
giving out his residential address for reason
of convenience or any other exigency. On
that basis alone, to infer that the residential
premises are used for business purposes, is
most illogical. The Prescribed Authority,
on the other hand, has done a complete
survey of the shops available to the family
comprising the five brothers and the sons of
Bhagwat Prasad, who are in the working
age group. The complete availability of the
shops with their location and the business
done by the five brothers has been recorded
by the Prescribed Authority to support his
finding that the landlord has no other shop
but the demised shop to establish his
independent business in. The Prescribed
Authority has also noted the fact that one of
the brothers of the landlord, Arun Gupta is
pursuing litigation to get his shop vacated.
The Prescribed Authority has clearly found
on the basis of relevant evidence, that the
landlord's brother, Bhagwat Prasad carries
on his business in shop No.192 and the
demised shop i.e. shop No.193 alone is
available to the landlord to set up his
independent business.

23. It is well settled that every adult
member of the family is entitled to
establish his independent business and if
the family have a property where that need
can be satisfied, moreso if the particular
member holds that property, it ought to be
released in favour of that person, who does
not have premises to establish and run his
independent business. In this connection,
reference may be made to the decision of
the Supreme Court in Mohd. Ayub and
another v. Mukesh Chand, (2012) 2 SCC
155, where it has been held:

"15.
It
is
well-settled
that
the
landlord's requirement need not be a dire
necessity. The Court cannot direct the
landlord to do a particular business or
imagine that he could profitably do a
particular business rather than the business
he proposes to start. It was wrong on the
part of the District Court to hold that the
appellants' case that their sons want to start
the general merchant business is pretence
because they are dealing in eggs and it is
not uncommon for a Muslim family to do
the business of non-vegetarian food. It is
for the landlord to decide which business
he wants to do. The Court cannot advise
him. Similarly, length of tenancy of the
respondent in the circumstances of the case
ought not to have weighed with the Courts
below."

24. In the circumstances, this Court is
of opinion that the Prescribed Authority has
rightly found for the landlord on the issue
of bona fide need and the Appellate
Authority has disturbed that finding in
704 INDIAN LAW REPORTS ALLAHABAD SERIES
manifest error, doing injustice to the
landlord.

25. The last issue that remains to be
dealt with is about the comparative
hardship. Much has been made for the fact
that the tenant has attempted to search
alternative accommodation, but could not
find one. The Prescribed Authority has
commented on the case of the tenant on this
score that though there is an averment that
the tenant has looked for alternative
accommodation,
no
particulars
about
where, when and which premises were the
subject matter of efforts by the tenant to
secure on rent pending these release
proceedings have been furnished. The
Prescribed Authority thought that the
averment is only a formality and this Court
is of the same opinion. There are no two
conclusions possible on this count.

26. Quite apart, some developments
have taken place pending this petition. The
tenant, who was an old man, has passed
away pending this petition. The demised
shop being a commercial accommodation,
all his heirs have been impleaded. Now, his
son has already been found to be well
settled in business and he has a threestoreyed shop located in Sarrafa Bazar,
Jhansi. He, therefore, would not suffer any
hardship by an order of eviction. Nothing
has been placed on record to show that the
tenant's son or the other three heirs, that is
to say, his two daughters and widow has
taken over his business in the demised
shop.

27. The principle, that subsequent
events can be taken note of in proceedings
for release, has the approval of the
Supreme Court in Ram Kumari Barnwal
vs. Ram Lakhan (Dead), 2007 (68) ALR
136. In Ram Kumari Barnwal in the
context of eschewing a course of remand,
where
release
proceedings
had
been
pending for long, it was observed by the
Supreme
Court
about
cognizance
of
subsequent events thus:

"4. Learned Counsel for the appellant
submitted that the approach of the High
Court is clearly erroneous. It is settled
position in law that subsequent events can
be taken note of. The High Court, even
though referred to the relevance of the
subsequent events erroneously came to the
conclusion that even if the judgment and
order passed by the Courts below are
erroneous in law, the matter will have to be
remanded to the Prescribed Authority.
There is no such requirement in law. In
fact,
after
noticing
that
the
release
application was filed about quarter of
century back, it is really unfortunate that
the High Court instead of deciding the
matter dismissed the writ petition granting
liberty to file fresh release application. In
other words, instead of shortening litigation
the High Court's order would mean
unnecessary prolongation of litigation."

28. In the result, this petition
succeeds and is allowed with costs. The
impugned order passed by the Appellate
Authority/
Additional
District
Judge/
Special Judge (E.C. Act), Jhansi in Rent
Control Appeal No.15 of 2009 is hereby
quashed. The order of the Prescribed
Authority/ Judge, Small Cause Courts,
Jhansi dated 22.09.2009 in P.A. Case
No.63 of 2007 is restored. The tenant
represented by his heirs, that is to say,
respondent nos.1/1, 1/2, 1/3 and 1/4 to this
petition shall handover vacant possession
of the demised shop to the landlord within
a period of three months of the date of this
judgment, subject to the condition that they
execute an undertaking with the Prescribed
4 All. Smt. Kusumlata Vs. State of U.P. & Ors.
705
Authority within a month carrying the
following terms:

(i) The tenants shall handover peaceful
and vacant possession of the demised shop
to the landlord;

(ii) During the aforesaid period of
time, the tenants will not sub-let the
demised shop or permit any third person to
occupy it; and,

(iii) During the aforesaid period of
three months, the tenants shall not damage
or disfigure the demised shop in any
manner.

29. In the event an undertaking is not
filed on affidavit within a month in the
above terms, the release order passed by
the Prescribed Authority shall become
executable forthwith.
----------
(2022)04ILR A705
APPEELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Special Appeal No. 89 of 2022

Smt. Kusumlata ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Rakesh Dubey, Sri Arvind Srivastava

Counsel for the Respondents:
C.S.C.

A. Civil Law - Essential Commodities Act,
1955
-
Section
3
-
UP
Essential
Commodities (Regulation of Sale and
Distribution Control) Order, 2016 - Fair
price
licence
-
Compassionate
appointment - Agent - Condition that the
applicant must be resident of locality,
imposed - Effect - GO dated 05.08.2019 -
Term 'family include unmarried daughter,
but not married daughter - Validity
challenged on the basis of its being hit by
Article 14 - Held, basic object and purpose
of the aforesaid Control Order 2016 is the
distribution of foodgrains and scheduled
commodities in an area through agents for
the
benefit
of
people,
particularly
economically
weaker
section
of
the
society - Held further, looking into the
object and purpose of Public Distribution
System, use of the words 'unmarried
daughter' in the definition of the word
'family' given in the Government Order,
2019, is not discriminatory. (Para 12 and
14)
Special Appeal dismissed. (E-1)
(Delivered by Hon'ble Surya Prakash
Kesarwani, J. & Hon'ble Jayant Banerji, J.)

1. Heard Sri Arvind Srivastava,
learned counsel for the appellant-petitioner
and Sri Girish Vishwakarma, learned
standing counsel for the State-respondents.

2. This special appeal has been filed
praying to set aside the judgment and order
dated 29.11.2021 in Writ-C No.21935 of
2021 (Smt. Kusumlata vs. State of U.P. and
2 others) passed by the learned Single
Judge.

3. The aforesaid writ petition was
filed by the petitioner praying for the
following relief:

"(i) Issue a writ, order or direction in
the nature of Mandamus commanding the
respondent no. 2 S.D.M. Bharthana District
Etawah to consider the claim of the
petitioner for compassionate appointment
of under the U.P. Essential Commodities
Act (Rules and Distribution Order, 2016).