# Dr. R.C. Agrawal and another v. Bharat Press and others

- **Citation:** (2009) 3 ILRA 1087
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-12
- **Case number:** Civil Misc. Writ Petition No. 37549 of 2009
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-r-c-agrawal-and-another-v-bharat-press-and-others-41472
- **Pages:** 10

## Headnote

and Eviction) Act 1972 Sec-21(i) (a)-
Bona-fide need-Land lord -very old
man-suffering
from
massive
heart
attack-strictly restrained from using
stairs-his son being Doctor-wants to
open
a
clinic-rejection
by
the
authorities below- held-not proper if
the case remanded-very purpose of
eviction frustrated.

Held: Para 27

I am conscious of the fact that this
Court cannot reevaluate the evidence
and
substitute
its
own
findings
because two views are possible. A bare
perusal of the release application,
objections filed by tenants and the
various affidavits it is abundantly clear
that the landlords (psetitioners) who
are owners, require the shops for their
personal need. They are the first and
the rightful claimant to use their own
property as they want it. This is a
situation where father and son with
their spouses are facing a number of
problems and therefore the release of
the shops cannot be refused. The very
purpose of the Act stands frustrated if
the two judgments of the courts are
left to stand.
Case law discussed
AIR 1999 Supreme Court, 100, 2009(1) ARC,
829, 2008(3) ARC 532.(2000)1 SCC, 679,
2000 SCF BRC,24, (1996) 5 SCC, 353,
(2002) 5 SCC, 397:2002 SCFBRC 388, AIR
1965 AP 435, (1979)1 SCC 273: 1986
SCFBRC 346, JT 2002(10) SC 203:2003
SCFBRC 137, JT 2004(Suppl.1) SC 538: 2004
SCFBRC 338, 1977 ARC 46, 2007 (68)
ALR,555, 2007(68) ALR, 603, 2008(71) ALR,
857, 2009(2) ARC,715, 2003(1) ARC, 256,
(1993) 3 SCC, 483, AIR 2002 Supreme
Court,200, 2004 All. C.J., 304 (S.C.).
1088 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

## Text

3 All] Dr. R.C. Agrawal and another V. Bharat Press and others
1087
entitled to any benefit under the judgment
dated 09.09.2005 and, therefore, he would
not be entitled for being considered
against the post of Junior Clerk in
question.

27. In view of the judgment dated
09.09.2005 having been set aside by us,
we
have
no
hesitation
in
further
expressing the same opinion in respect of
the judgment dated 12.01.2009 passed in
Writ
Petition
No.51691
of
2006,
inasmuch as the said judgment proceeds
on the same presumption and findings that
were drawn in favour of the petitioner in
Writ Petition No.7660 of 1999. Therefore,
the judgment dated 12.01.2009 passed in
Writ Petition No.51691 of 2006 is also set
aside.

28. Accordingly, both the special
appeals are allowed and the writ petitions
filed by the petitioner, i.e. Writ Petition
No.7660 of 1999 and Writ Petition
No.51691 of 2006 are dismissed.

29. In the facts and circumstances of
the case, there shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.10.2009

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Civil Misc. Writ Petition No. 37549 of 2009

Dr. Ram Chandra Agrawal and another

 ...Petitioners
Versus
Bharat Press and others

 ...Defendant-Respondents

Counsel for the Petitioner:
Sri Manish Trivedi
Sri A.K. Bajpai

Counsel for the Respondents:
Sri M.K. Gupta
Sri Nikhil Kumar
Sri Shikha Singh
U.P. Urban Building (Control of Rent
and Eviction) Act 1972 Sec-21(i) (a)-
Bona-fide need-Land lord -very old
man-suffering
from
massive
heart
attack-strictly restrained from using
stairs-his son being Doctor-wants to
open
a
clinic-rejection
by
the
authorities below- held-not proper if
the case remanded-very purpose of
eviction frustrated.

Held: Para 27

I am conscious of the fact that this
Court cannot reevaluate the evidence
and
substitute
its
own
findings
because two views are possible. A bare
perusal of the release application,
objections filed by tenants and the
various affidavits it is abundantly clear
that the landlords (psetitioners) who
are owners, require the shops for their
personal need. They are the first and
the rightful claimant to use their own
property as they want it. This is a
situation where father and son with
their spouses are facing a number of
problems and therefore the release of
the shops cannot be refused. The very
purpose of the Act stands frustrated if
the two judgments of the courts are
left to stand.
Case law discussed
AIR 1999 Supreme Court, 100, 2009(1) ARC,
829, 2008(3) ARC 532.(2000)1 SCC, 679,
2000 SCF BRC,24, (1996) 5 SCC, 353,
(2002) 5 SCC, 397:2002 SCFBRC 388, AIR
1965 AP 435, (1979)1 SCC 273: 1986
SCFBRC 346, JT 2002(10) SC 203:2003
SCFBRC 137, JT 2004(Suppl.1) SC 538: 2004
SCFBRC 338, 1977 ARC 46, 2007 (68)
ALR,555, 2007(68) ALR, 603, 2008(71) ALR,
857, 2009(2) ARC,715, 2003(1) ARC, 256,
(1993) 3 SCC, 483, AIR 2002 Supreme
Court,200, 2004 All. C.J., 304 (S.C.).
1088 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(Delivered by Hon'ble Ms. Poonam Srivastav, J.)

1. Heard Sri Manish Trivedi and
Sri A.K. Bajpai, learned counsels for the
petitioners, Ms. Shikha Singh Advocate
for the respondent no. 1, Sri Nikhil
Kumar Advocate for the respondent no.
2 and Sri M. K. Gupta Advocate for the
respondent no. 3.

2. Counter and rejoinder affidavits
have been exchanged and as agreed
between the counsels for the parties,
writ petition is heard finally.

3. Notices were accepted by Sri
M.K. Gupta Advocate on behalf of
respondent no. 3 Yogesh Kishan Dhall,
son of Late Kishan Chand Dhall, Sri
Nikhil Kumar Advocate on behalf of
respondent no. 2 Sohan Agrawal and
Ms. Shikha Singh Advocate on behalf of
respondent no. 1 Bharat Press. Counter
affidavit has been filed on behalf
respondent nos. 1 and 2. Sri M.K. Gupta
Advocate
filed
an
application
on
3.9.2009
bringing
on
record
a
compromise application on behalf of the
petitioners and respondent no. 3. Joint
affidavits have been filed by Anoop
Chandra Agrawal and Sri Neeraj Dhall
where the parties have entered into an
agreement on account of the reason that
father of the respondent no. 3 who is a
very old man and was admitted in Apolo
Hospital, New Delhi and therefore he
requested
for
some
sympathetic
consideration. Finally they entered into
an agreement after institution of the writ
petition that the respondent no. 3 will
continue as tenant of the disputed shop
on the ground floor for a period of 5
years at the government rental value of
Rs. 3,000/- per month from the date of
order of the court and parties have
agreed that for a period of 5 years, the
petitioners will not seek eviction of the
respondent
no.
3
alone
and
the
respondent no. 3 has further agreed to
vacate the disputed shop in recognition
of the fact that the petitioner no. 1 Dr.
Ram Chandra Agrawal will require the
shop for his proposed registered clinic
for
his
private
practice
only.
Accordingly the writ petition was
decided in terms of compromise viz.-aviz
between
the
petitioners
and
respondent no. 3 on 11.9.2009.

4. The dispute relates to a shop
situated
on
the
ground
floor
of
accommodation
No.
106/93,
K.P.
Kakkar
Road,
Allahabad.
The
respondents are three different tenants
occupying entire ground floor. The
respondent no. 1 is a tenant at the rate of
Rs. 100/- per month and respondent nos.
2 and 3 are paying Rs. 200/- per month
as rent. The petitioner no. 1 retired as
eye surgeon from Sitapur Eye Hospital
Trust and was living with his family in
his ancestral house. The petitioner no. 2
is his only son who has now shifted
from Sultanpur to Allahabad with his
entire family in the year 1995 and is
living in the residential accommodation
situated above the shop. Petitioner no. 1
and his wife have also shifted to
Allahabad and are living on the second
floor with his son petitioner no. 2.

5. A release application was filed
by the petitioners under Section 21(1)(a)
of U.P. Act No. 13 of 1972 (hereinafter
referred to as the Act) for release of
three shops on the ground floor. The
need and requirement pleaded in the
release application is that the petitioner
no. 2 was previously enrolled as an
Advocate but did not practice and
3 All] Dr. R.C. Agrawal and another V. Bharat Press and others
1089
finally
surrendered
his
registration
certificate to the Bar Council of U.P. on
25.5.1995. He started printing business
in partnership of one Sanjeev Misra in
the name and style of M/s Printrite
which was run from the house of Mr.
Sanjeev
Misra,
523/450,
Badshahi
Mandi, Allahabad. The partnership was
dissolved in the year 2001 and the
petitioner no. 2 having no other option
was compelled to take away the printing
machines,
computer,
furniture
etc.
which are now kept on the second floor
of the disputed shop. Since then the
petitioner no. 2 is idle without any work
and unemployed, therefore, he required
the shops in dispute for his personal use
to set up his printing business. The need
of the petitioner no. 1 was also set up
for the ground floor accommodation i.e.
the disputed shop as petitioner no. 1 had
suffered
massive
heart
attack
on
15.9.2002 and was admitted in Nazareth
Hospital, Allahabad. He was referred to
Escort Hospital, New Delhi and is also a
patient of diabetes and high blood
pressure and doctor has strictly advised
him not to use stairs but having no other
option but to ascend and descend the
staircase on the second floor number of
times during the day. The petitioner no.
1 also required job as he wanted to open
a small clinic on the ground floor after
shifting so that he may be engaged and
also put his skill to good use. Thus the
bonafide need set up in the release
application was on the aforesaid two
grounds. On perusal of the release
application, it transpires that it was
urgently
required
for
both
the
petitioners. Request to the respondents
to vacate the ground floor failed to yield
any result.

6. The respondents-tenant filed
their objection denying their bonafide
need
of
the
petitioners
pleading
comparative hardship in their favour.
Specific
objection
was
that
the
petitioner no. 1 and his wife did not
reside in Allahabad and they are
permanently residing at Sultanpur and
they have two big houses at Sultanpur.
He is rerunning his medical clinic at
Sultanpur and claim by the petitioner
that he had a massive heart patient and
diabetes is concocted and not worth
reliance. The ground for release of the
disputed shop was also denied. Sales tax
registration,
partnership
deed
and
dissolution deed were also denied. The
petitioner had also filed affidavit of
Sanjeev Misra, erstwhile partner of the
petitioner no. 2 which is numbered as
Paper
No.
48B
supporting
the
contention of the petitioner no. 2
regarding
partnership
business
of
printing press for the period from 1995
to 2001. Subsequently when Sanjeev
Misra was got employed after death of
his father in Allahabad University on
compassionate ground, the partnership
firm was dissolved. Neeraj Dhall, son of
respondent no. 3 had given his affidavit
on 1.7.2008 expressing willingness to
vacate the back portion hall of the first
floor of the disputed house. The
petitioners
had
also
offered
an
alternative
accommodation
to
respondent nos. 2 and 3 to shift their
business to the first floor from the
ground floor of the same building but
they refused to agree and instead
preferred
to
contest
the
release
application.

7. The trial court dismissed the
release application vide its judgment
dated
11.8.2008.
The
petitioners
1090 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
preferred an appeal under Section 22 of
the Act challenging the judgment passed
by the Prescribed Authority which was
numbered as Rent Appeal No. 119 of
2008.

8. During pendency of the appeal,
additional documentary evidence was
also brought on record on behalf of the
petitioner. A request was made by the
landlord that documents brought on
record at the stage of appeal were old
documents and were misplaced and
mixed up with the old unused papers
and not traceable and, therefore, it could
not be brought on record while the
proceedings were pending before the
Prescribed
Authority.
The
said
documents were refused by the appellate
court primarily on the ground that the
petitioners failed to file the partnership
deed which was very essential and,
therefore,
document
relating
to
partnership with Sanjeev Misra was not
acceptable and thus the contention of
learned counsel for the petitioners is
that the same were refused illegally.
Another application was moved on
behalf of the petitioners under Section
34 read with Rule 22(f) of the Rules
framed under the Act bringing to the
notice of the Court that the partnership
deed was also on record of the trial
court and, therefore, the court has
wrongly rejected the application for
taking
the
documents
on
record.
However, this application was once
again rejected by the appellate court on
17.3.2009. However, the appellate court
required both the contesting parties to
submit their written submissions and
thereafter dismissed the appeal vide
judgment and order dated 28.5.2009.
Both the judgments are impugned in the
instant writ petition.
9. The submission of learned
counsels appearing for the landlordpetitioners is that both the courts below
have erred in law and also principles
laid down by the Apex Court as well as
this Court in its various decisions taking
lop sided view in favour of the tenants
on
wholly
irrelevant
consideration.
Besides refusal to accept documents
relating to partnership with Sanjeev
Mishra on one hand and taking an
adverse view for want of those very
documents are evidently erroneous.

10. The respondent nos. 1 and 2
have contested the release application.
Counter and rejoinder affidavits as well
as written submissions have been filed
by respective counsels. Two judgments
of the courts below have been supported
by Ms. Shikha Singh and Nikhil Kumar
Advocates. It is submitted on behalf of
the tenants that both the courts below
have come to conclusion that the
landlord
does
not
require
the
accommodation in question and need is
not bonafide therefore the writ petition
is liable to be dismissed.

11. Learned counsels on behalf of
the petitioners have challenged each and
every findings of the two courts and
have laid emphasis that once the
Prescribed Authority had taken into
consideration and given findings on the
partnership deed, the appellate court
could not have refused documents who
is the last court of fact. However,
affidavit of partner Sanjeev Misra was
already on record and that was sufficient
to substantiate that some printing
business
was
carried
out
in
the
partnership
of
Sanjeev
Misra
and
petitioner no. 2. Besides the claim of the
petitioner no. 1 that on every day he has
3 All] Dr. R.C. Agrawal and another V. Bharat Press and others
1091
to climb 50 steps on second floor and
the courts were completely misled while
rejecting the release application.

12. I have heard the respective
counsels at length and also examined
two judgments in detail as well as
various documents filed in support of
the respective submissions. On a close
scrutiny of the judgments and arguments
advanced by the learned counsels
appearing on behalf of the petitioners
and respondents, it is apparent that the
judgments are not legally balanced.
Both the courts while holding that the
petitioner no. 1 is having two big houses
at Sultanpur as well as taking into
consideration the fact that he is a retired
eye surgeon at Sultanpur has completely
lost sight of the fact that now the same
retired man is living at Allahabad with
his son on the second floor and he
cannot
be
compelled
to
live
in
Sultanpur. He may have a number of
houses in different cities but it is
absolutely immaterial. It is not for the
court to direct the landlord to choose the
place where he should reside, specially
in the instant case where the courts
below have completely given a goodbye
to the consideration that the petitioner
no. 1 is an old ailing man having heart
problem and if he wants to live with his
son and his family, it ought to have been
respected. The courts cannot compel the
petitioner to live and run business in a
particular
city
or
in
a
particular
building, specially the courts were liable
to take into consideration that the
petitioner no. 2 is the only son of the
petitioner no. 1 and if he has preferred
to live with him despite the misery of
scaling steep stairs every day, the
findings cannot be said to be justiciable,
specially when both the courts have
accepted the fact that the petitioner no.
1 is a heart patient but declined to
release on the basis of an assumption
that he is living in Sultanpur. Some
stray prescriptions have been relied
upon to come to this conclusion whereas
it is amply explained that he had gone to
Sultanpur for a few days and some of
his old acquaintances approached him
and he had written out the said
prescriptions. The ground of bonafide
need has not been accepted only on
account of the finding that he has two
houses at Sultanpur but the courts
completely overlooked the fact that it is
situated outside the municipal limit of
Allahabad where the landlord has
preferred to reside in his old age with
his only son. The appellate court has
also gone to the extent of taking into
consideration some family settlement
which
cannot
be
taken
into
consideration
and
it
is
something
between the landlords interse. Both the
courts
have
completely
failed
to
appreciate the grounds as well as
evidence on record and also the fact that
all
the
printing
machineries
and
appliances are kept at the residence of
petitioner no. 2 on the second floor. In
fact while declining to accept the case
of the landlord, the courts have relied
upon seal of the treasury on the back
side of the stamp of first page of
dissolution
deed
which
mentions
19.5.1998. It is absolutely insignificant
as this was not a case or objection set up
by the tenant. It is not unusual, old
stamps are in possession and there is no
limitation for using them. No inference
can be drawn on its basis. While coming
to conclusion against the landlord the
courts
below
have
taken
into
consideration that first floor portion was
vacated by some tenant and was given
1092 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
to Neeraj Dhall. This has specifically
been replied by the landlord on affidavit
that he had agreed to vacate the ground
floor portion and, therefore, the first
floor was offered to him as an
alternative
accommodation
but
subsequently he declined from his own
assurance. It is also stated on affidavit
that the petitioner no. 2 is doing job
work by getting orders from different
Universities and is getting printing work
from the market which is hardly
profitable and he gets only nominal
commission. Thus he is suffering in day
to day business.

13. In fact after going through the
judgment, I realize that the courts have
taken small and extraneous matter into
consideration
and
not
considered
broadly the principles laid down for
coming to definite conclusion whether
the
accommodation
is
required
bonafidely or not and also regarding the
comparative hardship. I have also
noticed that the appellate court though
has halfheartedly come to a conclusion
that the landlords are suffering hardship
but since the finding on the bonafide
need was recorded against the landlord,
the appeal has also been dismissed. The
courts have strenuously tried to negate
the case of the landlord ignoring
specific assertions on affidavit. The
court has also disbelieved the assertion
that partnership stands dissolved for
want of the partnership deed on one
hand while they have refused to accept
the document in evidence.

14. The Apex Court in the case of
Sarla
Ahuja
Vs.
United
India
Insurance Co. Ltd., AIR 1999 Supreme
Court, 100 has held that to deprive a
landlord of the benefit of release on
account of availability of alternative
residential accommodation in another
city is not a ground to disentitle the
landlord from recovery of possession of
tenanted accommodation. The Apex
Court has categorically come to a
conclusion that it is unnecessary to
make endeavour as to how the landlords
have
adjusted
in
another
accommodation. This is what exactly
the courts below have done in the
instant
case.
They
have
tried
to
somehow advise the landlord and also
grant heavy consideration to the tenant
only because they have set up a
goodwill since last 40-50 years or
because they do not have any other
place to go. The courts below were
liable to take into consideration that it is
the landlord himself who is the best
judge of his requirement. The courts
cannot dictate how and where he should
live. Same view was expressed in the
case of Nanak Chand (since deceased)
and others Vs. Jai Bhagwan, 2009 (1)
ARC, 829. In the said case the landlord
had sought release on the ground that he
is retired and wants to live in his
hometown and also to do the research
work and write articles and papers on
the subject of science and also teach
some students free of charge. This court
was of the view that it is a very valid
ground and held that the landlord was
entitled for his accommodation. Similar
view was expressed in the case of
Shamshad Ahmad and others Vs. Tilak
Raj Bajaj (d) by L. Rs. and others,
2008 (3) ARC 532. Extract of relevant
paragraph is quoted below:-

"The Counsel is also right in
submitting that admittedly, Matloob
Ahmad had retired from service. Even if
the tenant was right in submitting that
3 All] Dr. R.C. Agrawal and another V. Bharat Press and others
1093
the landlord belonged to a higher strata
of society, it did not mean that all
throughout his life after retirement,
Matloob Ahmad, husband of applicant
No. 6 should not do any work. If he
wanted to get himself engaged in doing
some business. It could not be held that
he would not be entitled to possession of
property for doing business since he
was rich and even without doing any
business, he could maintain himself. A
finding as to bonafide requirement for
doing ready made business by Matloob
Ahmad has been expressly recorded by
the
Appellate
Authority.
The
said
finding was a finding of fact. Neither it
could have been interfered with, nor it
has been set aside by the writ Court. In
view of the above position, the High
Court was wrong in allowing the writ
petition."

15. Ragavendra Kumar Vs. Firm
Prem Machinery and Company, (2000)
1 SCC, 679, 2000 SCFBRC, 24, is
another authority for the proposition
that the landlord is the best judge of his
own requirement for residential or
commercial purpose and has complete
freedom in the matter. In this authority
the Apex Court has relied upon its
earlier judgment in Prativa Devi Vs.
T.V. Krishnan, (1996) 5 SCC, 353.

16. In Joginder Pal Vs. Naval
Kishore Behal, (2002) 5 SCC, 397 :
2002 SCFBRC 388, the Apex Court
with a reference to the provisions of
East Punjab Urban Rent Restriction Act,
on the question of bonafide need, after
surveying its earlier pronouncements,
has held that the requirement of a major
son and a coparcener in a joint Hindu
family intending to start a business is
the requirement of the landlord himself
as was held in B. Balaiah Vs. Chandoor
Lachaiah, AIR 1965 AP 435. The
words "for his own use" must receive a
wide, liberal and useful meaning rather
than a strict or narrow construction. It
has been further held that while casting
its judicial verdict, the Court shall adopt
a practical and meaningful approach
guided by the realities of life.

17. In Mst. Bega Begum and
others Vs. Abdul Ahad Khan and
others, (1979) 1 SCC 273: 1986
SCFBRC 346, it has been held that rent
control
laws
must
be
construed
reasonably. They should be interpreted
in such a way as to achieve the object of
enabling landlord to evict tenant where
the statute grants such right in favour of
landlord.

18. It has been held by the Apex
Court in the case of Akhileshwar
Kumar and others Vs. Mustaqim and
others, JT 2002 (10) SC 203 : 2003
SCFBRC 137, that landlord has the
right of choosing the accommodation
which would be reasonable to satisfy his
requirements. In Sarla Ahuja Vs.
United India Insurance Co. Ltd.
(supra) it has been held by the Apex
Court that the fact that landlady was in
possession of another flat in another city
is not a ground to disentitle her to seek
recovery of possession of tenanted
premises.

19. The Apex Court in Shakuntala
Bai and others Vs. Narayan Das and
others, JT 2004 (Suppl. 1) SC 538 :
2004 SCFBRC 338, has held that there
is no warrant for interpreting a Rent
Control legislation in such a manner.
The basic object of which is to save
harassment
of
tenants
from
1094 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
unscrupulous landlords. The object is
not to deprive the owners of their
properties for all time to come.

20. Smt. Sharda Devi Vs. Colonel
Dinesh Chandra and others, 1977 ARC
46, is an authority for the proposition
that if a landlord owns house at several
places and needs one of several other
houses to settle after retirement, need is
genuine and landlord can settle at any
place of his liking. Tenant cannot
superimpose his wishes on landlord.

21. In the case of Raj Kumar Vs.
IIIrd Additional District Judge, Meerut
and others, 2007 (68) ALR, 555, the
Court was of the view that it is settled
position of law that the landlord is the
best judge of his requirement for
residential or business purpose.

22. In the case of Mohd. Ayyub
Vs. District Judge, Lucknow and
another, 2007 (68) ALR, 603, it was
held that bonafide need and requirement
of a premises for business purposes and
augmentation of income for oneself and
for the family cannot be negativated in
any circumstances. The intention to
establish son in his career and the
requirement of the premises for the
same purpose cannot be termed as
malafide. Need of landlord to settle his
son in independent business cannot be
defeated on mere fact that the son was
working in a tailoring shop. Every
individual has a right to settle himself
independently in business.

23. This Court in the case of
Harish Bhatia Vs. Smt. Johra Begum,
2008 (71) ALR, 857, has held that to
establish her son in business the
landlady could establish the business of
her son from the room available on the
second floor and it is not for the tenant
to dictate to the landlord how he should
adjust without getting possession of the
tenanted premises.

24. In the case of Mohabbey Ali
Vs. Tej Bahadur and others, 2009 (2)
ARC, 715 the Court declined to look
and examine comparative hardship of
the tenant. An identical situation appear
in the instant case, the tenant has
nowhere stated that he has tried to look
an
alternative
accommodation
whatsoever, after initiation of the
proceedings
before
the
Prescribed
Authority. In such a circumstance, I am
of the view that the tenant is not entitled
for comparison of his hardship while
recording a finding on the question. In
the case of Sushila Vs. IInd Additional
District Judge, 2003 (1) ARC, 256
similar view was adopted. Also in the
case
of
Gulab
Bai
Vs.
Nalin
Narsimonia, (1993) 3 SCC, 483 the
Apex Court held that the tenant should
make an effort to search for an
alternative
accommodation
and
a
specific
assertion
is
essential
to
establish his 'hardship'.

25. The Apex Court held that the
word
'reasonable
requirement'
undoubtedly postulate that there must be
an element of need to a mere desire or
wish. The view taken by the Apex Court
was that the distinction between desire
and need should doubtless be kept in
mind but it should not be extended so
far as to make even a genuine need as a
desire.
Perusal
of
two
judgments
apparently has stretched its arms too
long while declining to accept the need
of the landlords as 'bonafide'. Stray
circumstances have been given tall
3 All] Dr. R.C. Agrawal and another V. Bharat Press and others
1095
meaning only to discard the evidence
and the contention of the landlord. It is
eloquent on the face of the two
judgments of the courts below that
conscious and deliberate effort has been
made to negate the valid contention of
the petitioners.

26. In view of the aforesaid
discussions, it is a foregone conclusion
that the need of the landlord is genuine,
bonafide
and
the
landlords
are
defenitely suffering greater hardship and
they are entitled for release of the two
shops in possession of respondent nos. 1
and 2. Both the father and son have
conclusively pleaded and affirmed their
independent
need
for
a
vacant
accommodation and therefore, both the
shops are liable to be released in their
favour. I am not inclined to remand the
matter for afresh decision. Admittedly,
father is a very old man and remand of
the case might render the entire purpose
of institution of the release application
fruitless. The Apex Court in the case of
G. C. Kapoor Vs. Nand Kumar Bhasin
and others, AIR 2002 Supreme Court,
200 allowed the release application
straightaway setting aside the findings
of the Prescribed Authority, Appellate
Authority and the High Court on the
question
of
bonafide
need
and
comparative hardship. The Apex Court
was of the view that no fruitful purpose
will be solved in remanding the matter
and thereby opening another gate of
fresh series of litigation. Similar view
was adopted by the Apex Court in the
case of R.V.E. Venkatachala Gounder
Vs. Viswesaraswami V.P. Temple and
another, 2004 All. C.J., 304 (S.C.).

27. I am conscious of the fact that
this
Court
cannot
reevaluate
the
evidence and substitute its own findings
because two views are possible. A bare
perusal of the release application,
objections filed by tenants and the
various affidavits it is abundantly clear
that the landlords (petitioners) who are
owners, require the shops for their
personal need. They are the first and the
rightful claimant to use their own
property as they want it. This is a
situation where father and son with their
spouses
are
facing
a
number
of
problems and therefore the release of
the shops cannot be refused. The very
purpose of the Act stands frustrated if
the two judgments of the courts are left
to stand.

28. In the circumstances and for
the reasons detailed herein above the
writ petition is allowed. The judgment
and order dated 11.8.2008 passed by the
Small Causes Court, Allahabad in P.A.
Case No. 13 of 2005 and judgment and
order dated 28.5.2009 passed by the
Additional District and Session Judge,
Court No. 12, Allahabad in Rent
Control Appeal No. 119 of 2008 are
quashed.

29. In the end, learned counsels for
the tenants have made a request for
granting some time to the tenants to
vacate the shops in question. However,
the request of the learned counsels for
the tenants that some time may be
allowed to vacate the shops in question
appears to be reasonable and justified.

30. The tenants are permitted six
months' time from today to vacate the
shops in question and handover vacant
possession to the landlord till 25.4.2010
provided they file an undertaking within
a period of four weeks before the
1096 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Prescribed Authority that they will
continue to pay rent at the rate of Rs.
3000/- per month from the date of
judgment till they hand over vacant
possession and also they will not sublet
or handover possession to any third
person but for the landlords. In the
event the tenants fail to file an
undertaking in the shape of an affidavit
within the aforesaid period, this liberty
of six months shall automatically come
to an end.
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