# Heera Lal Agarwal & another v. II A.D.J., Farrukhabad & others

- **Citation:** (2001) 1 ILRA 80
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/heera-lal-agarwal-another-v-ii-a-d-j-farrukhabad-others-39195
- **Pages:** 8

## Text

80 INDIAN LAW REPORTS ALLAHABAD SERIES [2001

Let Copy of this order be issued to
the Chairman of the Committee free of
charge by tomorrow.

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By the Court

1. By means of this filed under
Article 226 of the Constitution of India,
petitioner prays for issuance of a writ,
order or direction in the nature of
certiorari quashing the judgment and
order dated 25.11.1997 passed by the
Appellate Authority allowing the appeal
and setting aside the judgement and order
dated 25.11.1997 passed by the appellate
Authority allowing the appeal and setting
aside the judgement and order dated
30.08.1996 passed by the prescribed
Authority in the proceeding under section
21 (1 ) (a) of the U.P. Urban Buildings (
Regulation of letting, Rent and Eviction )
Act 1972 ( U.P. Act No. XIII of 1972),
for short the Act.
1All] Heera Lal Agarwal & another V. II A.D.J., Farrukhabad & others
81
2. The dispute relates to shops no.
5/23, 5/24, Nehru Nagar, Farrukhabad
(hereinafter referred to as shop in
dispute). The petitioner is a tenant of the
shop in dispute and used to carry on
"Sarrafa" business in the said shop for last
more than 40 years in the name and style
of Firm Sundar Lal Ram Bharose &
Company. The respondents no.2 and 3
(herein after referred to as contesting
respondents) applied for release of the
shop in dispute as according to them the
said shop was needed for setting Prabhat
Kumar
son
of
Rajendra
Prasad
(respondent no.2) in the business of sale
of furniture and gift articles. It was stated
that
Prabhat
Kumar
completed
his
education in 1992 but since then he was
jobless and for that reason he was also not
being married. It was pleaded that the
petitioner
no.1
had
an
alternative
accommodation in his possession at Lohai
Road, Farrukhabad and could also acquire
other shop, that need of the contesting
respondents was bona fide and genuine. It
was also pleaded that the contesting
respondents were also willing to have
shop at Lohai Road, Farrukhabad owned
by respondent no.1 at the same rent at
which the shop in dispute was let out to
him if the same was offered to them by
petitioner after getting it repaired. It was
stated that the contesting resp0ndents
asked the petitioner to vacate the shop in
dispute to which he did not agree. Plea of
comparatively more hardship, in case the
release application was rejected was also
taken. The petitioner no.1 filed his written
statement/ objection on receipt of notice
from the court of prescribed Authority
admitting relationship of landlord and
tenant
between
the
parties,
but
controverting and denying the rest of the
allegations
made
in
the
release
application. It was pleaded that actually
the shops in dispute, were two shops on
the spot. One was let out at the rent of
Rs.30/- per month and other at the rent of
Rs.93.75/- per month, total Rs.123.75/-
per month. Praphat Kumar son of
respondent no.2 actually had no need for
the shop in dispute as he was already
engaged in the family business. It was
also pleaded that alternative place for
setting him in business was available to
the landlords at Lohai Road as they had
two shops on the said road. Sarrafa Bazar
was the centre of sarrafa business and the
shop in dispute was not fit for starting
proposed business of furniture and Gift
articles. The said shop was also not big
enough to start the said business, the
petitioner had been carrying on Sarrafa
business in the shop in dispute for last 40
years. He with the consent of landlord's
made a show room to make the shop more
attractive after spending sufficient amount
of money. The said business was the only
source of his livelihood. He has earned
Goodwill in the said business. His two
sons also sit in the said shop and if he was
uprooted from the said shop, he shall be
ruined. It was also pleased that Probhat
Kumar son of respondent no.2 was
carrying independently the business of
general merchant in the named and style
of Firm Sunder Lal Ram Bharose &
Company which was situated on the first
floor of their general store at Nehtru
Road. Even at Lohi road the land lords
used to carry on the business of
brassware. They actually wanted to
enhance the rent of the shop in dispute. In
view of these facts there was absolutely
no question of any hardship what to say
for comparatively greater hardship to the
landlord's
if
their
application
was
rejected. The release application was,
therefore, liable to be dismissed.
82 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
3. In support of their cases the
parties have produced evidence, oral and
documentary, The prescribed Authority
after perusing the material on record
recorded clear and categorical findings
against the contesting respondents on the
relevant questions involved in the case. It
was held that the need of the landlords
was neither bona fide nor genuine. They
had two storied shop at Nehru Road and
were engaged in family business of
general merchandise. Pawan Kumar, the
other son of respondent no. 2 also used to
work at that shop. It was held that even at
Lohai Road they had two ancestral shops
in which they were also carrying on
Business. The shop in dispute was not fit
for establishment of business of furniture
and Gift articles, as the said business of
furniture and Gift articles, as the said
business requires a big and spacious shop,
with show room and place to manufacture
and repair furniture, The shop in question
was smaller in size which was situated in
sarrafa market and was fit for sarrafa
business only in which petitioner no.1 use
to carry on business for last 40 years. It
was also held that the landlords have
owned three brick kilns and members of
their family used to do and look after the
said business. The prescribed Authority
also
recorded
clear
and
categorical
finding that Prabhat Kumar also used to
do business in the name and style of M/s
Sundar Lal Ganga Saran & Company.
The Prescribed Authority also held that
with a view to make out a case for release
of the shop in dispute, during the
pendency of the case, the landlords appear
to have entered into a partition and also
pretended to claim that one brick kiln was
closed.
Even
on
the
question
of
comparative hardship, it was held that the
landlords
shall suffer absolutely no
hardship if their application was rejected.
On the other hand, if the petitioner no. 1
was uprooted from the shop in dispute, he
shall be totally ruined as he had no
alternative suitable place to shift his
business. The shop situated at Lohai Road
was also not found fit to shift the
proposed business as there was no
Sarrafa Shops at that place. After
recording said findings by judgment and
order
dated
30.8.1996
the
release
application was rejected by the Prescribed
Authority.

4. Aggrieved by the said judgment
and order passed by the prescribed
authority the contesting respondents filed
as appeal before the Appellate Authority.
Before the Appellate Authority it was
urged that judgement and order passed by
the prescribed Authority was illegal and
contrary to evidence on record, therefore,
the same was liable to be set aside. The
Appellate Authority agreeing with the
submissions made by the learned counsel
for the respondents set aside the judgment
and order passed by the prescribed
Authority and allowed the appeal by its
judgement and order dated 25.11.199,
hence the present writ petition,

5. Learned counsel appearing for the
petitioners vehemently urged that the
Appellate Authority has acted illegally in
setting aside the judgment and order
passed by the prescribed authority without
critically examining properly setting aside
the findings on which said judgment was
based. It was urged that the Appellate
Authority has acted illegally in not
reversing the findings on the question of
comparative hardship in accordance with
law and in allowing the appeal. It was
urged
that
under
the
facts
and
circumstances of the case no reasonable
person could arrive at a finding that the
1All] Heera Lal Agarwal & another V. II A.D.J., Farrukhabad & others
83
need of the landlords for the shop in
dispute was genuine or bona fide or that
they were to suffer any hardship in case
their application was rejected. The
judgement and order passed by the
appellate Authority was, therefore, liable
to be set aside. Learned counsel for the
petitioner
also
submitted
that
the
petitioners were willing to offer one shop
to the contesting respondents at Lohai
Road after getting the same repaired and
renovated and after making it fit for their
requirement, if they were willing to
accept the same.

6.

Learned
counsels
for
the
contesting respondents submitted that
before the Authority below, their offer
was not accepted by the petitioners.
Therefore, at this stage, for him, there is
no occasion to accept the offer, It was
also urged that the judgment and order
passed by the appellate authority was
quite valid and legal.

7. I have considered the rival
submissions made by the learned counsel
for the parties and also carefully perused
the record.

8. The main thrust of the argument
of learned counsel for the petitioners is
that the Appellate Authority has, without
critically examining the judgment and
order passed by the Prescribed Authority,
without meeting the reasons given by the
said authority and without reversing the
findings recorded by it, recorded its own
findings on the question of bone fide
need. The Appellate Authority, thus, acted
as if it was the original authority. It
recorded its own findings and substituted
the same in place of the findings recorded
by the prescribed Authority, therefore, the
judgement and order passed by the
Appellate Authority was bad in law and
was liable to be set aside. The judgment
of the Appellate Authority is the judgment
of reversal, therefore, it should be
adequate and satisfactory it is well settled
in law that the judgement of reversal must
contain definite findings on the questions
involved and must give reasons for
reversing the decisions of the prescribed
Authority. The appeal was filed against
the order passed by the prescribed
Authority
dismissing
the
release
application filed under Section 22 of the
Act, which reads as under:-

"22, Appeal- Any person aggrieved by an
order under Section 21 or Section 24 may
within thirty days from the date of the
order prefer an appeal against it to the
District Judge, and in other respects, the
provisions of Section 10 shall mutatis
mutandis apply in relation to such
appeal."

9. Section 22 of the Act provides
that the provisions of Section 10 of the
Act shall mutatis mutandis apply in
relation to an appeal filed under Section
22 of the Act. Section 10 of the Act reads
as under :-

"10. Appeal against order under Sections
8,9 and 9-A - (1) Any person aggrieved
by an order of the District Magistrate
under Section 8 or Section 9 or Section
9-A may, within thirty days from the
date of the order, prefer an appeal
against it to the District Judge, and the
District Judge may either dispose it of
him self or assign it for disposal to an
Additional District Judge under his
administrative control, and may recall it
from any such officer, or transfer it to
any other such officer.
84 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
(2) The appellate authority may
confirm, vary or rescind the order, or
remand the case to the District
Magistrate for rehearing, and may also
take any additional evidence, and
pending its decision, stay the operation
of the order appeal on such terms, if any,
as it thinks fit.

(3) No further appeal or revision shall
lie against any order passed by the
appellate authority under this section,
and its order shall be final."

10. The Scope of appellate powers
came to be considered by this Court in
Gyan Chand Vs. Additional District
Judge, Badaun and another, 1996 ( 2)
A.R.C. 479 wherein, in was hold as
under:-

" 8. A reading of Section 22 with Section
10 of the Act clearly shows that the
Appellate Authority has got the power of
confirming, varying or rescinding the
order under appeal. It has also got power
to remand the case to the authority below
and to grant interim order on such terms
as it thinks fit. The order passed by the
Appellate Authority has been made final
under sub- section (3 ) of section 10 of
the Act. The Appellate Authority while
confirming varying or rescinding the
order, will have to act judicially and in
accordance with law. The Appellate
Authority will have to record the reasons
for passing the said order particularly
while passing an order of reversal.

11. After considering the decisions
in the cases of Ram Niwas Pandey Vs.
VII Additional District Judge, Kanpur
and another, 1982 (1 ) ARC 246, Mohd,
Nanhey Main Vs. IV Additional District
Judge, Aligarh and others, 1982 (2 )
ARC 527, Mahavir Jain Vs I Additional
District Judge, Jhansi and others, 1985 ( I
) ARC 368, it was ruled as under:-

" In the aforesaid decisions, in the similar
circumstances, the orders passed by the
Appellate Authority have been quashed
by this court on the ground that they did
not examine the findings recorded by the
prescribed Authority critically and the
material, which was relied upon by the
Prescribed
Authorities
and
reasons
recorded by them for the conclusion
arrived at, remained untouched."

Similar view was taken by this Court
in Ramesh Chandra Vs. II Additional
District Judge, Allahabad.1996 (2) A.R.C.
617.

12. From the reading of the afore
said Sections of the Act and decisions, it
is evident that the Appellate Authority/
District Judge may confirm, vary or
rescind the order of remand the case to the
Prescribed
Authority
for
re-hearing
besides conferring other powers. In the
present case, the Appellate Authority has
rescinded (reversed) the judgement and
order passed by the prescribed Authority,
therefore, the judgement of the Appellate
Authority
must
satisfy
the
basic
requirements of the judgement of reversal,
which have been stated above. In the Act
and the Rules prescribed the render, no
detailed procedure for deciding an appeal
has been provided but sub-section (7) of
Section 34 of the Act provides as under:-

"34. Powers of various authorities and
procedure to be followed by them-
(1).............................

(7)

The
District
Magistrate,
the
prescribed authority or the appellate or
1All] Heera Lal Agarwal & another V. II A.D.J., Farrukhabad & others
85
re-visional authority shall record reasons
for every order made under this Act."

13. In view of the aforesaid
provision, the judgement of the Appellate
Authority must contain reasons, This
Court has consistently ruled that the
Appellate Authority should examine the
judgement of the Prescribed Authority
critically if it wanted to reverse the
findings recorded by the prescribed
Authority. It must meet the reasons
recorded to after referring to the
evidence which was referred and relied
upon
by
the
Prescribed
Authority,
including such other evidence which for
med part of the record and there after, it
could reverse the findings and record its
own findings on the questions involved
in the appeal.

14. In the present case, the Appellate
Authority, after stating the facts and some
of the findings recorded by the prescribed
Authority while examining the questions
of bona fide and genuine need, recorded
its own findings, it also referred to certain
decisions of this court and abruptly
reached the conclusion that the prescribed
Authority committed mistake in analyzing
the facts and law and that the appeal had
force and was liable to be allowed
without critically examining the
findings and without meeting reasons
recorded by the Prescribed Authority.

15. It is evident form the judgment
and order passed by the Appellate
Authority that what has weighed with it to
allow the appeal was the fact of
availability of alternative accommodation
at Lohai Road. The Prescribed Authority,
while dealing with the question of
availability of alternative accommodation,
rejected the contention of the contesting
respondents on the ground that the
petitioner has been carrying on Sarrafa
business in the shop in dispute for about
40 years. He with the consent of the
landlord, made show-room attractive after
investing
sufficient
amount,
earned
goodwill in the said business. The said
business was the only source of his
livelihood and his two major sons also
used to sit with him on the shop in
dispute, and that Prabhat Kumar, Son of
the petitioner no.2 was already engaged in
the business in the name and style of
Sunder Lal Ram Bharose and Company,
and also used to assist his father in the
ancestral business. He was carrying on the
business of brick kiln and that at Lohai
Road, there was no Sarrafa business
carried by any other person. It was not a
fit and proper place for sarrafa business.
In Dr. M.K. Salpekar Vs. Sunil Kumar
Shyam Sunder Chaudhary and others,
A.I.R. 1988 S.C. 1841, the Apex Court of
the
country,
while
considering
the
question of alternative accommodation
was pleased to rule as under:-

"When a Court is called upon to
decide whether another building available
to the tenant can be treated as alternative
accommodation,
it
has
to
consider
whether the other building is capable of
reasonably meeting the requirements of
the tenant on his vacating the disputed
premises."

In Pritamber Lal Gupta Vs. Bankey
Lal and others, 1978 A.R.C. 17, this Court
ruled as under:-

" The alternative premises must be such
where the business could be carried on by
the petitioner. The State Government
again appears in favour of the respondents
nos. 1 and 2 and without discussing the
86 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
evidence on the said question, held that
the premises no.27/33, Katre, Allahabad,
Could be used by the petitioner for
carrying on his business. The State
Government ought to have considered
the evidence of the petitioner which was
to the effect that the same was not
suitable for the purposes of doing the
business."

Similar view was taken by this
Court in Ram Swarup Gupta Vs. III
Additional District Judge and others, 1978
U.P.R.C.C. 446, wherein it was held as
under:-

"Mere availability of an accommodation
is not enough. Whether it is adequate for
the nature and the requirement of the
business to be carried on as also the
location of that accommodation are
important circumstances. The floor space
area
available
in
the
alternative
accommodation
may
also
from
an
important consideration depending on the
nature of business carried on."

16. According to the version of the
petitioners, at Lohai Road no shop is
available, but even if it is available, it
does not satisfy the requirements of an
alternative accommodation as held in
the above noted decisions. The view
taken and the finding recorded by the
Appellate Authority, to the contrary, to
the effect that there existed an alternative
accommodation was not correct. The
Appellate Authority has not applied its
mind to the fact that all the four shops or
any one of them situated at Lohai Road
was vacant and available to the petitioner
and that it satisfied the requirement of an
alternative accommodation.

17. There is another aspect of the
matter, as in paragraph 6-A of the release
application, it was stated as under:-

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18. From the above noted paragraph
it is evident that the dispute could be
resolved if one shop as Lohai Road was
offered by the petitioner and the same is
accepted by the contesting respondents
no.
2
and
3
with
this
view
in
consideration, I asked the learned counsel
for the petitioner as to whether the
petitioner was willing to accept the offer
and provide one shop suitable for the
purpose of Prabhat Kumar, Learned
Counsel
for
the
petitioner
after
consultation
with
his
client
made
statement at the Bar that he was willing
to offer a shop suitable for the purpose
of Prabhat Kumar on the same terms
and on the same conditions the shop in
dispute had been let out to the petitioner.
It was also stated that the shop shall be
repaired and renovated according to the
wishes of the contesting respondents
within such reasonable time as may be
prescribed by this court. The learned
counsel appearing for the contesting
respondents also consulted his client
after the aforesaid offer was made, but
according to him, the contesting
respondents declined to accepted the
officer, legally, the contesting respondents
are bound by their statements of fact
made in paragraph no. 6-A of the release
1All] Kamla Palace V. State of U.P. & others
87
 application as the same so far has not
been withdrawn specifically or otherwise.

19. In support of their pleas
regarding
partition
of
property
and
closure of brick kiln business, the
contesting
respondents
filed
supplementary counter affidavit along
with which as many as 15 documents
have been filed as Annexures. Learned
counsel for the respondents wanted to rely
on the said documents. In the affidavit, it
has not been stated as to whether these
documents were filed before the
authorities below or they are being
produced before this Court for the first
time. In any view of the matter, this
Court, in exercise of its power under
Article 226 of the constitution of India,
cannot appraise or re-apprise the
evidence and cannot record its own
findings on the questions of fact
involved in the case.

20. It may also be noticed that the
Prescribed Authority has recorded a clear
and categorical finding on the question of
comparative hardship in favour of the
petitioner, the Appellate Authority did not
reverse the said finding in accordance
with law, Legally, without reversing the
said finding, the judgement and order
passed by the Prescribed Authority could
not be reversed, therefore, the judgement
and order passed by the Appellate
Authority is bad in law judging from the
said angle. A reference in this regard may
be made to a decision in Shyam Lal Vs.
VII Additional District Judge, Meerut and
others, 1986 ( 1) A.R.C. 34.

21. In view of the aforesaid
discussions, the judgement and order
passed by the Appellate Authority
dated 25.11.1997 is liable to be set aside
and the case is liable to be remanded to
the Appellate Authority for decision in
the light of the observations made above.

22. The writ petition succeeds and is
allowed. The judgement and order dated
25.11.1997 passed by the respondent no.1
is hereby quashed. The case is remanded
to the Appellate Authority for decision
afresh in the light of the observation made
above. The Appellate Authority shall also
take into consideration the offer made by
the petitioner to provide a suitable shop to
the contesting respondents at Lohai Road
while deciding the appeal. It is further
observed that the appeal shall be decided
expeditiously.
Petition Allowed.

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