# Dilip Singh Chawla v. Krishna Kurari Gupta &Ors

- **Citation:** (2019) 1 ILRA 998
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-14
- **Case number:** Rent Control No. 89 of 1999
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dilip-singh-chawla-v-krishna-kurari-gupta-ors-44513
- **Pages:** 10

## Headnote

Chief
Standing
Counsel,
Dheeraj
Srivastava, R.K. Dewedi

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972:
Rules 16(1)(d), 16(2). Even if no plea
under Rule 16(1)(d) has been raised
below-it is the duty of the Court to
consider this aspect.
Ground based on subsequent event is
liable to be considered by the Court.
Release application was allowed. Appeal
was dismissed. Petitioner has challenged
both the orders. Setting aside both the
orders and remanding the matter, the
High Court. Even if the plea under Rule
16(1)(d) has not been raised below, it is the
duty of the Court to take into account that
aspect. (Para 17, 23)

B. Subsequent event - ground based on -
which was not available before both the
Courts below, is liable to be considered by
the Court while dealing with the matter of
bonafide requirement. (Para 20, 27)

C.
No
distinction
is
made
between
residential and non-residential premises in
Section 21(1). Therefore, it cannot be held
that the power vested in the authority to
order partial eviction is confined to the
residential premises only. (Para 19, 24)
1 All. Dilip Singh Chawla Vs. Krishna Kurari Gupta & Ors.
999
Precedent followed:-

1.Smt. Raj Rani Mehrotra Vs. IInd Addl.
District Judge and others, Allahabad Rent
Cases, 1980
(Para 17, 32)

## Text

998 INDIAN LAW REPORTS ALLAHABAD SERIES
occupation of the building. The right of
re-entry under Section 24(2) is to be seen
as a statutory right flowing from the
legislative
mandate.
Any
other
construction would, in my view, defeat
the purpose of the statutory provision
itself.

60. In view of the foregoing
discussion, the order dated 13.12.2018
passed
by
the
District
Magistrate/Collector, Budaun rejecting
the objections raised by the petitionerlandlord on the ground that the provisions
contained under Section 34(4) did not
contain any bar with regard to substitution
of the legal heirs and representatives of
the deceased-tenant, cannot be faulted
with. The District Magistrate while
passing the order has clearly held that the
landlord could not substantiate their
arguments with regard to the substitution
application being barred by the provisions
contained under Section 34(4) of the Act,
1972 and Rule 25 of the Rules, 1972 by
placing any authority so as to demonstrate
that the substitution of the legal heirs of
the deceased-tenant was barred under the
provisions of the Act, 1972.

61. Counsel for the petitioners has
not been able to point out any material
error or irregularity in the orders passed
by respondent no.1/District Magistrate,
Budaun
rejecting
their
objections/application for recall in respect
of the substitution of the legal heirs of the
deceased-tenant,
so
as
to
warrant
interference in exercise of powers in writ
jurisdiction under Article 226 of the
Constitution of India.

62. The petition lacks merit and is
accordingly dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.05.2019

BEFORE
THE HON'BLE IRSHAD ALI, J.

Rent Control No. 89 of 1999

Dilip Singh Chawla ...Petitioner
Versus
Krishna Kurari Gupta &Ors. ...Respondents

Counsel for the Petitioner:
S. Mirza

Counsel for the Respondents:
Chief
Standing
Counsel,
Dheeraj
Srivastava, R.K. Dewedi

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972:
Rules 16(1)(d), 16(2). Even if no plea
under Rule 16(1)(d) has been raised
below-it is the duty of the Court to
consider this aspect.
Ground based on subsequent event is
liable to be considered by the Court.
Release application was allowed. Appeal
was dismissed. Petitioner has challenged
both the orders. Setting aside both the
orders and remanding the matter, the
High Court. Even if the plea under Rule
16(1)(d) has not been raised below, it is the
duty of the Court to take into account that
aspect. (Para 17, 23)

B. Subsequent event - ground based on -
which was not available before both the
Courts below, is liable to be considered by
the Court while dealing with the matter of
bonafide requirement. (Para 20, 27)

C.
No
distinction
is
made
between
residential and non-residential premises in
Section 21(1). Therefore, it cannot be held
that the power vested in the authority to
order partial eviction is confined to the
residential premises only. (Para 19, 24)
1 All. Dilip Singh Chawla Vs. Krishna Kurari Gupta & Ors.
999
Precedent followed:-

1.Smt. Raj Rani Mehrotra Vs. IInd Addl.
District Judge and others, Allahabad Rent
Cases, 1980
(Para 17, 32)

2. Saroj Mishra and others Vs. Chandrakanti
Sinha and others, 2009 (27) LCD 874 (Para
18)

3. Swaraj Kumar (Sri) Vs. Arvind Kumar, 2005
(2) ARC 243 (Para 19)

4. Jai Narain Khanna Vs. IInd A.D.J.,
Moradabad and others, 2007 (1) ARC 254
 (Para 20, 27)

Precedent distinguished: -

1. Mohd. Zafar Khan and others Vs. District
Judge, Hardoi and others, 2011 (2) ARC 629
(Para 11, 21)

2. Ramji Lal Vs. 1st Addl. District Judge,
Muzaffarnagar and others, 1992 (1) ARC 473,
(Para 12)

3. Suresh Chand Sharma Vs. Nand Kumar
Kamal, 2013 (2) ARC 174 (Para 13) (E-4)

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Shafiq Mirza, learned
Senior Advocate assisted by Sri Himayu
Mirza, learned counsel for the petitioner
and Sri Dheeraj Srivastava, learned
counsel for the respondent no.1.

2. Factual matrix of the case is that
an application under Section 21(1)(a) of
the U.P. Act No.13 of 1972 was filed by
opposite party no.1 on 10.1.1997. The
petitioner filed written statement on
21.8.1997. The release application was
allowed vide order dated 11.9.1998.

The petitioner, feeling aggrieved by
the order passed by the Prescribed
Authority, filed an appeal which has also
been
dismissed
vide
order
dated
24.7.1999 and on the request made by the
learned
counsel
for
the
appellant,
operation of the judgment was stayed for
a period of one month. Both the orders
passed by the Prescribed Authority as
well as by the Appellate Court are under
challenge.

3. Challenging the impugned orders,
submission of learned counsel for the
petitioner is that the provision contained under
Section 21(1) (a) is mandatory to be followed
while deciding the release application on the
ground of bona fide requirement. Both the
courts below have committed gross illegality
in not returning finding on the point by
following the mandatory provisions of Section
21(1)(a) of the Act No.13 of 1972.

4. In support of his submission, he has
placed reliance upon the following judgments:

(i) Smt. Raj Rani Mehrotra v. IInd
Addl. District Judge and others reported
in
Allahabad
Rent
Cases,
1980
paragraph 1

(ii) Saroj Mishra and others v.
Chandrakanti
Sinha
and
others
reported
in
2009
(27)
LCD
874,
paragraph 8.

(iii) Swaraj Kumar (Sri) v. Arvind
Kumar reported in 2005 (2) ARC 243,
paragraphs 5,6,7,8 and 9.

5. Next submission of learned
counsel for the petitioner is that during
the pendency of the proceedings, if
another shop became vacant that too will
be taken into consideration while deciding
the issue involved at this stage also. In
regard to that, he placed reliance upon the
judgment rendered by this Court in the
case of Jai Narain Khanna v. IInd
A.D.J., Moradabad and others reported
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
in 2007 (1) ARC 254, paragraphs 9,10
and 11.

6. Sri Safiq Mirza, learned counsel for
the petitioner further submitted that under the
proviso to Section 21 (1)(a), certain
requirement is prescribed to be considered
while dealing with the bona fide requirement
of the landlord as well as of the tenant.
Likewise, he placed reliance upon proviso (4)
to Section 21 to the effect that the Prescribed
Authority and the Appellate Court have failed
to appreciate that while recording finding on
bona fide requirement, the factual as well as
relevant evidence is to be taken care of which
has not been done in the present case.

7. Per contra, submission of learned
counsel for the respondents is that the
petitioner has Chawla market complex,
wherein there are 25-30 shops, in which
he can establish his shop to run his
business, therefore, in comparison of the
landlord the bona fide requirement and
comparative hardship of the tenant is
more than that of landlord.

8. He next submitted that both the
courts below while considering the
application for release of the shop have
taken care of the comparative hardship of
the landlord as well as bona fide
requirement being three sons and five
daughters in his family, therefore his
submission is that both the courts below
have committed no error in law in passing
the
impugned
judgments.
He
next
submitted that in view of the finding
return by both the courts below, no
interference is called for and the writ
petition is liable to be dismissed.

9. He next submitted that opposite
party no.1 is the owner of the shop in
question and for release of the shop
occupied by the petitioner, he moved an
application under Section 21 (1)(a) of the
Act No.13 of 1972 on 10.9.1997 on the
ground that son of the plaintiff is
unemployed, so that he may be settled in
business in the shop in dispute.

10. Next submission of learned
counsel for the respondents is that the
Prescribed Authority on the basis of
evidence, has recorded finding on the
bonafide requirement which does not
suffer from infirmity or illegality. He next
submitted that the Appellate Authority,
after perusal of the material on record, has
affirmed the finding return by the
Prescribed Authority in regard to release
of the shop.

11. In support of his submissions, he
placed
reliance
upon
the
judgment
rendered by this Court in the case of
Mohd. Zafar Khan and others v.
District Judge, Hardoi and others
reported
in
2011
(2)
ARC
629
paragraphs 85,86 and 91.

12. He further placed reliance upon
the judgment rendered by this Court in the
case of Ramji Lal v. 1st Addl. District
Judge,
Muzaffarnagar
and
others
reported in 1992(1) ARC 473 so as to
distinguish
the
applicability
of
the
judgments
cited
in
favour
of
the
petitioner.

13. He also placed reliance upon the
judgment rendered in the case of Suresh
Chand Sharma v. Nand Kumar Kamal
reported in 2013 (2) ARC 174.

14. I have heard rival submissions of
learned counsel for the parties and
perused the material on record as well as
law reports relied upon by the learned
1 All. Dilip Singh Chawla Vs. Krishna Kurari Gupta & Ors.
1001
Senior
Advocate
appearing
for
the
petitioner as well as learned counsel for
the respondents.

15. To resolve the controversy of the
present writ petition, Section 21(1)(a) is
quoted below:

"21. Proceedings for release of
building under occupation of tenant.

(1) The Prescribed Authority may, on
an application of the landlord in that
behalf order the eviction of a tenant from
the building under tenancy or any
specified part thereof if it is satisfied that
any of the following grounds exits,
namely-

(a) that the building in bona fide
required either in its existing form or after
demolition and new construction by the
landlord for occupation by himself or any
member of his family, or any person for
whose benefit it is held by him, either for
residential purposes or for purposes of
any profession, trade, or calling, or where
the landlord is the trustee of a public
charitable trust, for the objects of the
trust; ......"

16. On perusal of the provisions
referred hereinabove and the order passed
by the Prescribed Authority, it is reflected
that while dealing with the matter of
bonafide requirement, there is only recital
that the bonafide requirement of the
landlord is more than that of the
tenant/petitioner. While reaching at the
conclusion of the bonafide requirement,
the Prescribed Authority would have
considered the comparative hardship,
irreparable loss and injury and to arrive at
conclusion of bonafide requirement, he
has to record cogent reason which is
missing in the impugned orders. Thus,
non-recording of cogent reason to arrive
at conclusion of bonafide requirement, the
order vitiates in law.

17. In regard to the consideration of
the provisions contained under Section
21(1)(a), learned counsel for the petitioner
placed
reliance
upon
the
judgment
rendered in the case of Smt. Raj Rani
Mehrotra (supra), wherein the Hon'ble
Supreme Court has held in paragraph 1 as
under:

"1. We have heard counsel for the
parties. On going through the judgments
of the lower authorities also of the High
Court we are satisfied that the issue
arising under Rule 16(1)(d) of the rules
framed under the U.P. Urban Buildings
(Regulation
of
Letting,
Rent
and
Eviction), Rules, 1972, as to whether the
landlord's need could have been satisfied
by releasing only a part of the premises
has not been gone into or considered by
any of them. When the plea under the said
rule was pressed on behalf of the tenant in
the High Court. The High Court rejected
it on the sole ground that no such plea
has been raised by the tenant in his
written statement and as such it could not
be considered. It is clear that under the
relevant rule it is a duty of the court to
take into account that aspect while
considering the requirements of personal
occupation of the landlord and therefore,
this issue will have to be remanded to the
High Court."

18. Learned counsel for the
petitioner placed reliance upon the
judgment rendered in case of Saroj
Mishra (supra), wherein following has
been held in paragraphs 8 and 9:

"8. After hearing learned counsel for
petitioner
and
learned
counsel
or
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents, as it is not disputed that the
issue regarding part of release of the
accommodation to satisfy the need of the
landlord-respondent
has
not
been
considered, therefore, this Court is of the
view that matter needs re-consideration in
view of Rule 16(1)(d) of Rules 1972 which
is mandatory in nature. This Court as well
as the Apex Court has also taken the same
view.
9. In view of the aforesaid fact, the writ
petition is allowed in part and the order
dated 30.9.2008 passed by learned
Additional District Judge, Court No.1,
Allahabad is hereby quashed and the
matter is remanded back to Appellate
Authority for decision in view of the
observation made above taking into
consideration the provision of Rule
16(1)(d) of the Rules framed under the
Uttar
Pradesh
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 as well as the Apex Court
judgment considering the question of part
release of accommodation in dispute. As
the matter is very old, therefore, the same
may be decided by Appellate Authority
within a period of six months without
granting any unnecessary adjournments
to the parties."

19. Another judgment rendered in
the case of Swaraj Kumar (Sri) (Supra)
relied upon by learned counsel for the
petitioner, wherein the following has been
held in paragraphs 5, 6,7,8 and 9:

5. Learned counsel for the petitioner has
argued firstly that in view of the provisions of
Section 21(1)(a) of the Act it was incumbent
on the part of the prescribed authority as well
as the appellate authority before directing
release of the accommadation in dispute
under Section 21(1)(a) of the Act, to consider
as to whether the release of the part of
accommodation will serve the purpose of the
landlord and tenant both and if it would have
come to the conclusion that the release of the
part of the accommodation will serve the
purpose, it should direct for release of part of
the accommodation not of entire. Learned
Counsel for the petitioner further argued
many other points but since the writ petition
succeeds on this point of part release of the
accommodation, the other points are not
discussed. For ready reference Section
21(1)(a) is quoted below :

"21. Proceedings for release of building
under
occupation
of
tenant.-(1)
The
prescribed authority may, on an application
of the landlord in that behalf order the
eviction of a tenant from the building under
tenancy or any specified part thereof if it is
satisfied that any of the following grounds
exists, namely :

(a) that the building is bona fide
required either in its existing form or
after demolition and new construction by
the landlord for occupation by himself or
any member of his family, or any person
for whose benefit it is held by him, either
for residential purposes or for purposes of
any profession, trade, or calling, or where
the landlord is the trustee of a public
charitable trust, for the objects of the
trust...."

6. As against the point of part
release,
learned
Counsel
for
the
respondent raised objections to the effect
that since this point was not raised either
before the prescribed authority, or before
the
appellate
authority,
therefore,
petitioner cannot be permitted to raise it
before this Court for the first time.
Learned Counsel for the petitioner relied
upon the decision of the Apex Court in
Smt. Raj Rani Mehrotra v. IInd Additional
District Judge and Ors., 1980 ARC 311,
wherein the Apex Court has ruled as
under :
1 All. Dilip Singh Chawla Vs. Krishna Kurari Gupta & Ors.
1003

"We have heard counsel for the
parties. On going through the judgments
of the lower authorities also of the High
Court we are satisfied that the issue
arising under Rule 16(1)(d) of the Rules
framed under the U.P. Urban Buildings
(Regulations
of
Letting,
Rent
and
Eviction), Rules 1972, as to whether the
landlord's need could have been satisfied
by releasing only a part of the premises
has not been gone into or considered by
any of them. When the plea under the said
rule was pressed on behalf of the tenant in
the High Court, the High Court rejected it
on the sole ground that no such plea has
been raised by the tenant in his written
statement and as such it could not be
considered. It is clear that under the
relevant rule it is duty of the Court to take
into account that aspect while considering
the requirements of personal occupation
of the landlord and therefore, this issue
will have to be remanded to the High
Court.

We accordingly set aside the order of
the High Court dismissing the writ
petition and remand the matter back to it
for determination of aforesaid issue. If
necessary, theparties may have to be
allowed to lead fresh evidence, if the High
Court is unable to decide it on the
materials on the record. If evidence
becomes necessary, the High Court may
in its turn remand the matter back to the
trial court, which will give an opportunity
to both the parties to lead fresh evidence."

7. It is then submitted by learned
Counsel for the petitioner that in view of the
law laid down by the Apex Court, the
objection raised by respondent deserves to be
rejected. It is then submitted by learned
Counsel for the respondents that since the
accommodation in dispute is a non-residential
accommodation which is governed by the
provisions of Rule 16(2) of the Rules framed
under U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Rules, 1972 and
not by the provisions of Rule 16(1) of the
aforesaid Rules, therefore, the question of
considering the part release by the authorities
does not arise. In reply to the aforesaid
objection learned Counsel for the petitioner
further relies upon other decision of the Apex
Court in Ramesh Chandra Kesharwani v.
Dwarika Prasad and Anr., 2002 (4) AWC
2737 (SC) : 2002 (2) ARC 298, wherein
taking notice of the Sub-rules (1) and (2) of
Rule 16 of the aforesaid Rules, 1972 the Apex
Court has ruled as under :

"5. The first contention raised by
Shri R.B. Mehrotra looked attractive
prima face, but on a closer reading of
Section 21(1) it leaves little scope for
doubt that the Prescribed Authority is
vested with the power to order eviction of
a tenant from the building under tenancy,
or any specified part thereof if it is
satisfied about exercise of the ground
specified in the section. No distinction is
made between residential and nonresidential premises in the section.
Therefore, by interpretation, it cannot be
held that the power vested in the authority
to order partial eviction is confined to the
residential premises only.

Regarding Rule 16, it is to be rioted
that Sub-rules (1) and (2) lay down
certain factors for consideration by the
Prescribed Authority which is considering
the question of eviction from the premises.
Rule 16(1) deals with premises in
occupation for the purpose of residence
and Rule 16(2) deals with premises in
occupation of a tenant for the purpose of
any business. Clause(d) of Rule 16 (1)
provides that where the tenant's needs
would be adequately met by leaving with
him a part of the building under tenancy
and the landlord's needs would be served
by releasing the other part, the Prescribed
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
Authority shall release only the latter part of
the building. This provision, in our view,
merely reiterates the power vested in the
authority to order eviction of the tenant from
the premises in entirety or portion of it. No
doubt a similar provision is not found in Subrule (2) of Rule 16, but that does not affect the
power of the authority vested under Section
21 of the Act to order eviction of tenant from a
portion of the premises in an appropriate case
if the authority is satisfied that on the facts and
circumstances of the case interest of justice
will be served by passing such an order.
Therefore, the first contention raised by Shri
Mehrotra cannot be accepted."

8. Learned Counsel for the petitioner
has also relied upon another judgment of
this Court in Pratap Narain Tandon v.
Abdul Makatadir, 2005 (1) AWC 921 :
2005 (1) ARC 555, wherein in the similar
circumstances this Court quashed the
order of the prescribed authority as well
as the appellate authority and remanded
the matter to the authority to decide in
accordance with law in the light of
observations made in the judgment.

9. Considering the aforesaid facts and
arguments and the law laid down by the Apex
Court and this Court, this writ petition deserves
to be allowed and is hereby allowed. The order
dated 31.3.2005 (Annexure-15 to the writ
petition) passed by the appellate authority is
quashed and the matter is remanded to the
appellate authority to consider the question of
part release and decide the same in the light of
the observations made in this judgment and in
accordance with law. Since the matter is old,
the appellate authority is directed to decide the
question involved within three months from the
date of presentation of certified copy of this
judgment before him.

20. He further placed reliance upon
the judgment rendered in the case of Jai
Narain Khanna (supra), wherein this
Court in paragraphs 9, 10 and 11 has held
as under:-

"9. According, the subsequent event
of availability of the shop, in which
original landlord was doing business, to
Shyam Sunder during pendency of the
writ petition after the death of the original
landlord in the year 1998 has changed the
entire scenario. It is such an important
subsequent development, which will have
to be taken into consideration. It has
totally satisfied the need of Shyam Sunder
as set up in the original release
application.

10. I have considered the legal
position in respect of subsequent events in
he matter of bona fide need of the
landlord in detail in the authority
reported in Diptee Singh v. A.D.J., 2006
ARC 157. In the said authority, I have
placed reliance upon several Supreme
Court authorities including K.N. Agarwal
v. D. Devi, 2004 (2) A.R.C. 764

11. Accordingly both the impugned
orders are set aside and writ petition is
allowed only on the ground of subsequent
event of death of original landlord and
availability of the shop, in which original
landlord was carrying on the business, to
Shyam Sunder for whose need release
application was filed.

Para 13 of Diptee Singh authority is
quoted below:-

"I have held in Khursheeda v.
A.D.J., 2004 (2) ARC 64 that while
granting relief to the tenant against
eviction
in
respect
of
building
covered by Rent Control Act, writ
Court is empowered to enhance the
rent to a reasonable extent. Under
somewhat similar circumstances the
Supreme
Court
in
the
authority
reported in A.K. Bhatt v. R.M. Shah
1 All. Dilip Singh Chawla Vs. Krishna Kurari Gupta & Ors.
1005
AIR 1997 SC 2510: 1997 SCFBRC
322, enhanced the rent from Rs.101/-
per month to Rs.3500/- per month
with effect from the date of the
judgment of the Supreme Court. For
the
period
during
which
appeal
remained pending before the Supreme
Court rent was enhanced to Rs.2000
per month for some of the period and
Rs.2500/- per month for rest of the
period. In the said authority release
application of the landlord had been
allowed by the Court below. The
Supreme Court held that the landlord
who had sought
release of the
building when he was about 54 years
of age had become 87 years of age
when the matter was decided by the
Supreme Court hence he was not in a
position to do any business. This fact
of old age of the landlord was taken
into
consideration
as
relevant
subsequent event by the Supreme
Court.

21.

Learned
counsel
for
the
respondents placed reliance upon the
judgment rendered in the case of Mohd.
Zafar Khan (supra), wherein the following
has been held in paragraphs 85, 86 and 91:

"85. And in the case of Ramji Lal
Vs.
1st
Addl.
District
Judge,
Muzaffarnagar and others, 1992 (1)
ARC 473, in paragraph No.19 has
held as under:

"Para No.19- There is no dispute
that if the provision of Rule 16(1)(d)
have not been considered by the
Appellate Authority the same can be
considered
by
the
High
Court.
Reference may be made to the case
reported in Smt. Raj Rani Vs. IInd
Additional District Judge, 1980 ARC
311(SC). But since this Rule is not
attracted in the present case, there
was
no
question
of
it
being
considered."

86. In the light of abovesaid facts,
the provision which emerge out is to the
effect that the only interpretation of Rule
16(1)(d) of Rules framed under U.P. Act
13 of 1972 is that the same has no
application to a non-residential building
as the said sub-rule does not deal with an
accommodation let out for commercial/
business purpose but deals with an
accommodation let out for residential
purpose, thus the Prescribed Authority or
Appellate Authority in the aid of Rule
16(1)(d) cannot consider theory of partial
release of a commercial/ business space
in respect to which release application
moved by the landlord under Section
21(1)(a) of U.P.Act 13 of 1972 and the
same is to be decided as per provisions as
provided under Rule 16(2) of the Rules.

91. As per admitted facts of the present
case, petitioners/ tenants are enjoying
comforts of a rented shop while the landlord/
respondent is doing his business from another
rented shop and in this regard, appellate court
after appreciacing facts of the present case
stated to the effect that after filing of release
application tenant had not made any sincere
effort to find out alternate accommodation. So
as per settled provision of law that when a
release application is filed before the
prescribed authority, tenant must find out
suitable accommodation, he cannot force
landlord to allow him to run his business from
a shop rented to him."

22. Learned counsel for the
petitioner by placing reliance upon
certain
judgments
wherein
Rule
16(1)(d) was considered by holding
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
that to arrive at conclusion of bonafide
requirement,
reason
should
be
recorded. Mere recital that there is
bonafide requirement, is not sufficient.
Learned counsel for the respondents
tried to distinguish the judgments
relied upon by learned counsel for the
petitioner on the pretext that most of
the judgments have dealt the provisions
contained under Rule 16(1)(d). Thus,
the ratio of judgments is not applicable
to the present facts and circumstances
of the case.

23. The dispute in hand pertains in
regard to Section 21(1)(a) of the Act
No.13 of 1972, therefore, the finding is to
be recorded in regard to bonafide
requirement taking into consideration of
aforesaid provisions.

24. Hon'ble Supreme Court while
considering
bonafide
requirement
as
required under Section 16(1)(d) has
proceeded to hold that no reason has been
recorded to arrive at the conclusion of
bonafide
requirement,
although
the
judgment is in consideration of provisions
under Rule 16(1)(d), but the ratio of
judgments shall be made applicable in a
case dealing with the matter under Section
21(1)(a) wherein while deciding the issue,
finding with reason is to be return on the
baonfide requirement. Therefore, the
submission advnaced that the judgment
relied upon by the learned counsel for the
petitioner is not applicable to the present
facts and circumstances of the case, is
misplaced.

25. On perusal of the impugned
orders, it is apparent on the face of it that
both the courts below while passing the
impugned orders have failed to discharge
their legal duties to arrive at the
conclusion of bonafide requirement. Both
the orders do not contain the cogent
reason and mere rectial of bonafide
requirement is not the purpose to decide
the requirement of the landlord. The
courts below would have considered that
there is bonafide need and if it is not
considered, there shall be hardship to the
landlord. In the present case, both the
courts below have failed to record the
reason in this regard.

26. In the above-referred judgments
whether dealing with the provisions of
Rule 16(1)(d) or the provisions contained
under Section 21(1)(a), it has been
recorded that the Prescribed Authority as
well as the Appellate Authority has to
take care to arrive at the conclusion of
bonafide
requirement
by
recording
finding on the basis of material evidence
produced before them. Due to nonconsideration of the aforesaid aspect of
the matter, both the orders impugned in
the writ petition suffer from gross
illegality and cannot be sustained.

27. In regard to the shop which
became vacant during the pendency of
the
writ
petition,
the
submission
advanced by the learned counsel for the
petitioner is that even though the ground
was not available before both the courts
below, the same is liable to be
considered by this Court while dealing
with the matter of bonafide requirement.
He submits that due to subsequent
vacant shop which is available to the
landlord will serve the purpose and meet
the end of requirement to run the
business of his son. In this regard, he
placed reliance upon the judgment
rendered in the case of Jai Narain
Khanna (supra), wherein this Court
while dealing with the matter has held
1 All. Smt. Munni Devi & Ors. Vs. Addl. Dist. & Session Judge IVth Bahraich & Ors.
1007
that the issue cannot be denied by the
High Court on the issue of subsquent
event of availability of the shop by the
High Court and remanded the matter for
reconsideration
of
the
relevant
subsequent events by the Hon'ble
Supreme Court.

28. This Court, on over-all
consideration of material on record, has
recorded that both the courts below have
failed to record cogent reason to arrive at
the
conclusion
of
the
bonafide
requirement and is of the opinion that by
setting aside the orders, the matter is to
be remanded back to the Prescribed
Authority for fresh consideration with
the further
direction
to take
into
consideration the subsequent events of
availability of the shop to fulfill the
bonafide needs of the landlord.

29. In view of the above, this Court
has arrived at the conclusion that both the
courts
below
have
ignored
the
consideration of bonafide requirement by
not recording cogent reason to arrive at
the conclusion of bonafide requirement.
Thus, the orders dated 24.7.1999 and
11.9.1998 cannot be sustained and are
hereby set aside.

30. Accordingly, this writ petition
succeeds and is hereby allowed.

31. In the interest of justice, the
matter is remanded back to the Prescribed
Authority to reconsider and pass fresh
order permitting the parties to lead
evidence and provide opportunity of
hearing while considering the issue
involved as observed by this Court.

32. It is, however, provided that
question of existence of subsequent shop
shall also be taken into consideration in
the light of the judgment referred
hereinabove in the case of Smt. Raj Rani
Mehrotra (supra).

33. It is however directed that
since the matter is old, therefore, the
exercise
in
this
regard
shall
be
concluded and final order shall be
passed within a period of four months
from the date of production of a
certified copy of this order.

34. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.05.2019

BEFORE
THE HON'BLE IRSHAD ALI, J.

Rent Control No. 11763 of 2019

Smt. Munni Devi &Ors. ...Petitioners
Versus
Addl. Dist. & Session Judge IVth
Bahraich &Ors. ...Respondents

Counsel for the Petitioners:
Sri Anurag Narain

Counsel for the Respondents:
M.A. Khan

U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972:
Sections 12, 16, 21(1)(a). Landlord's a
remedy under S.16 does not affect the
maintainability of application U/s 21.

Release application was allowed. Appeal was
dismissed. Petitioner has challenged both the
orders. Dismissing the Petition, the High Court.
Premises had not been let out to a sub-tenant is a
finding of fact, therefore provisions of Sections 12
and 16 are not attracted. (Para 28)

Precedent followed: -