# Dr. Ghanshyam Das Arora and another v. Roop Kishore Chandak and others

- **Citation:** (2005) 1 ILRA 13
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-11-30
- **Case number:** Civil Misc. Writ Petition No.42319 of 2003
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-ghanshyam-das-arora-and-another-v-roop-kishore-chandak-and-others-40304
- **Pages:** 4

## Headnote

Constitution
of
India-Article
226Exercise of power under U.P. Act 13 of
1972-Ss. 21 (1) (a) and 22-Application
for release findings as to bonafide
requirement as well as comparative
hardship affirmed by appellate authorityWrit Petition-held, findings recorded by
Prescribed Authorities and affirmed by
appellate
authority
on
question
of
bonafide need as well as comparative
hardship, need no interference under
Article 226, as writ Court is not a Court
of appeal.

Held: Para 7

Applying the guidelines and tests as laid
down by the Apex Court in the aforesaid
case I do not find this case to be a fit
case, particularly in view of the fact that
the findings recorded by the prescribed
authority and affirmed by the appellate
authority on the question of bona fide
requirement as well as comparative
hardship, for interference under Article
226 of the Constitution of India. This
writ petition, therefore, has no force and
deserves to be dismissed.
Case law followed:
(2003) 6 SCC 575

## Text

http://www.allahabadhighcourt.nic.in
1All] Dr. Ghanshyam Das Arora and another V. Roop Kishore Chandak and others
13
on the mere suggestion of the court
parties agree to enhance the rent by
several times.

Writ
petition
disposed
of
accordingly.

10. Shri S.R. Jalil, learned standing
counsel is directed to send copies of this
judgment to Chief Secretary, Revenue
Secretary and all the Collectors of the
Districts of Uttar Pradesh for perusal and
communication to Deputy Collectors.

Let a copy of this order be given free
of cost to Shri S.R. Jalil, learned standing
counsel.
Petition Disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.11.2004

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No.42319 of 2003

Dr. Ganshyam Das Arora and another

 ...Petitioners
Versus
Roop Kishore Chandak and others

 ...Respondents

Counsel for the Petitioners:

Counsel for the Respondents:
Sri H.M. Srivastava
S.C.

Constitution
of
India-Article
226Exercise of power under U.P. Act 13 of
1972-Ss. 21 (1) (a) and 22-Application
for release findings as to bonafide
requirement as well as comparative
hardship affirmed by appellate authorityWrit Petition-held, findings recorded by
Prescribed Authorities and affirmed by
appellate
authority
on
question
of
bonafide need as well as comparative
hardship, need no interference under
Article 226, as writ Court is not a Court
of appeal.

Held: Para 7

Applying the guidelines and tests as laid
down by the Apex Court in the aforesaid
case I do not find this case to be a fit
case, particularly in view of the fact that
the findings recorded by the prescribed
authority and affirmed by the appellate
authority on the question of bona fide
requirement as well as comparative
hardship, for interference under Article
226 of the Constitution of India. This
writ petition, therefore, has no force and
deserves to be dismissed.
Case law followed:
(2003) 6 SCC 575

(Delivered by Hon'ble Anjani Kumar, J.)

1. This writ petition under Article
226 of the Constitution of India is filed by
the tenant challenging the orders passed
by the prescribed authority as well as
appellate authority whereby both the
authorities have allowed the application
filed by the landlord under Section 21 (1)
(a) of U.P. Act No.13 of 1972 (hereinafter
referred to as the Act) for release of the
accommodation in question in favour of
the landlord.

2. The respondent-landlord filed
application under Section 21 (1) (a) of the
Act on the ground that the son of the
landlord has grown up and has passed his
M.Com examination. He wants to start his
own business in the shop in dispute.
Therefore, to establish his son the
landlord bona fide requires the shop in
question and the need of the landlord is
more pressing as compared to that of the
tenant inasmuch as the tenants are
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
14
carrying on business of brick kiln. It was,
therefore, prayed for that the shop in
question be released in favour of the
landlord. It is also alleged by the landlord
that when the landlord requested the
tenant to vacate the premises they
demanded Pagri (premium) for vacating
the same.

The
aforesaid
application
was
contested by the tenant on the ground that
the landlord, in fact, wanted to enhance
the rent to which the tenant has not
agreed, therefore, this application has
been filed for mala fide intention. The
tenant has further taken up the case that in
fact the son of the landlord for whose
need
the
application
was
filed
is
employed in a private firm at Delhi and is
drawing salary of Rs.10,000/- per month,
whereas in the shop in question the son of
the tenant is carrying on his practice of
Dentist and is earning his livelihood. In
case the shop in question is released in
favour of the landlord the tenant is to
vacate it and will suffer a loss.

3. Before the prescribed authority
both the parties have adduced their
respective evidence. After considering the
case set up by both, landlord and tenant,
and on the basis of evidence on the record
the prescribed authority has arrived at a
conclusion that the need of the landlord is
bona fide and more pressing as compared
to that of the tenant. Thus the prescribed
authority released the shop in question in
favour of the landlord.

4. Aggrieved thereby the tenant
preferred an appeal as contemplated under
Section 22 of the Act. The appellate
authority affirmed the findings recorded
by the prescribed authority. Thus this writ
petition challenging the order passed by
the prescribed authority as well as the
appellate authority.

5. Learned counsel for the petitioner
has argued before me that the prescribed
authority as well as the appellate authority
have committed error which is manifest
error of law inasmuch as they have come
to the conclusion that the son of the
landlord, for whose need the release of the
shop was prayed for, was in fact
employed in a private firm at Delhi but
still the shop in question was released.
Thus the findings arrived at by the
prescribed authority and affirmed by the
appellate authority on both the questions,
namely, bona fide requirement as well as
comparative hardship deserve to be
quashed and the application filed by the
landlord deserves to be set aside and
application under Section 21 (1)(a) of the
Act
deserves
to
be
rejected.
The
prescribed authority aw well as the
appellate authority have considered this
aspect of the argument and have recorded
a finding that it has been categorically
stated that the son of the landlord for the
time being had joined the job which is the
job of a private company so that he may
not sit idle and as soon as the shop was
release he would start his own business.
This finding of the prescribed authority
has been affirmed by the appellate
authority along with the finding recorded
by the prescribed authority on the
question of bona fide requirement of the
landlord as well as comparative hardship.
Learned counsel for the petitioner cited
one sentence or the other from the
judgment here and there and tried to press
that the findings arrived by the prescribed
authority and affirmed by the appellate
authority deserve to be quashed.
http://www.allahabadhighcourt.nic.in
1All] Dr. Ghanshyam Das Arora and another V. Roop Kishore Chandak and others
15

6. This is settled law that this Court
in exercise of power under Article 226 of
the Constitution of India will not sit in
appeal over the findings arrived at by the
prescribed authority and affirmed by the
appellate authority. The Apex Court in a
recent judgment reported in (2003) 6 SCC
675, Surya Dev Rai v. Ram Chander Rai,
sub-paras (5), (6), (7) and (8) are
reproduced below, clearly held the scope
of interference by this Court under Article
226 of the Constitution of India:-

(5) Be it a writ of certiorari or the
exercise of supervisory jurisdiction,
none is available to correct mere
errors of fact or of law unless the
following requirements are satisfied :
(i) the error is manifest and apparent
on the face of the proceedings such as
when it is based on clear ignorance or
utter disregard of the provisions of
law, and (ii) a grave injustice or gross
failure of justice has occasioned
thereby.
(6) A patent error is an error which is self
evident i.e. which can be perceived or
demonstrated without involving into
any lengthy or completed argument or
a long-drawn process of reasoning.
Where two inferences are reasonably
possible and the subordinate court has
chosen to take one view, the error
cannot be called gross or patent.
(7) The power to issue a writ of certiorari
and supervisory jurisdiction are to be
exercised sparingly and only in
appropriate cases where the judicial
conscience of the High Court dictates
it to act lest a gross failure of justice
or grave injustice should occasioned.
Care, caution and circumspection
need to be exercised, when any of the
above said two jurisdictions is sought
to be invoked during the-pendency of
any
suit
or
proceedings
in
a
subordinate court and the error though
calling for correction is yet capable of
being corrected at the conclusion of
the proceedings in an appeal or
revision preferred there against and
entertaining
a
petition
invoking
certiorari or supervisory jurisdiction
of the High Court would obstruct the
smooth flow and/or early disposal of
the suit or proceedings. The High
Court may feel inclined to intervene
where the error is such, as, if not
corrected at that very moment, may
become incapable of correction at a
later stage and refusal to intervene
would result in travesty of justice or
where such refusal itself would result
in prolonging of the lis.
(8) The High Court in exercise of
certiorari or supervisory jurisdiction
will not convert itself into a court of
appeal and indulge in reappreciation
or evaluation of evidence or correct
errors in drawing inferences or correct
errors of mere formal or technical
character."

7. Applying the guidelines and tests
as laid down by the Apex Court in the
aforesaid case I do not find this case to be
a fit case, particularly in view of the fact
that
the
findings
recorded
by
the
prescribed authority and affirmed by the
appellate authority on the question of
bona
fide
requirement
as
well
as
comparative hardship, for interference
under Article 226 of the Constitution of
India. This writ petition, therefore, has no
force and deserves to be dismissed.

8. Lastly it is submitted by the
learned counsel for the petitioner that
since the petitioner's son is carrying on
his profession of Dentist in the shop in
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
16
question, he may be allowed some time to
vacate the shop in question. In the facts
and circumstances of the case it would be
in the interest of justice that the petitioner
is granted time till 30th June 2005 to
vacate the shop in question provided:
1. the petitioner furnishes undertaking
before the prescribed authority within
a period of three weeks from today
that he will hand over peaceful vacant
possession of the shop in question to
the landlord on or before 30th June
2005;
2. the petitioner undertakes to deposit
the entire arrears of rent/damages
calculated at the rate of rent within
same period of three weeks from
today, if not already paid, by either
depositing the same before
the
prescribed authority or paying the
same to the landlord-respondent and
keeps
on
depositing
the
future
rent/damages by first week of the
succeeding month in the manner
prescribed above as and when it falls
due so long as the tenant remains in
possession of the shop or till 30th June
2005 whichever
is
earlier. The
amount
if deposited before
the
prescribed authority by the petitionertenant, the same shall be permitted to
withdraw by the landlord.

In the event of default of any of the
conditions mentioned above, it will be
open to the landlord to get the order of
release executed against the petitioner
through process of law.

In view of what has been stated
above the writ petition is dismissed.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2004

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.35499 of 2001

Lalit Kumar Srivastava
...Petitioner
Versus
State of U.P.and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri R.C. Shukla
Sri Ajay Shankar
Sri V.K. Singh

Counsel for the Respondents:
Sri R.K. Tripathi
S.C.

Dying in Harness Rules, 1974-G.O. dated
4.9.2000-Compassionate
appointmentClaims
for-Petitioner
applied
for
appointment under Dying in Harness
Rules on Class III post on death of his
father -Appointment given on Class IV
post in Junior High School-on 2.8.81
Subsequent appointment of two other
persons on class III posts under Dying in
Harness
Rules-Writ
petition-plea
of
discrimination-Director
of
Basic
Education, (Chairman of the Board)
directed to enquiry into matter-In case it
is found that on date of petitioner's
application, there was any vacancy in
class III post, he may be offered
appointment against Class III post on
principle of 'first come first serve'-In
case vacancies occurred subsequent to
appointment of petitioner on class IV
post and he has made application for
class III post and has not moved his
claim is required to be considered for
appointment on class III post even
though he was appointed on class IV
post-Director of Basic Education ordered
to pass reason and speaking orderFurther, Govt. directed to constitute