# Israr Ahmad v. Devanand and others

- **Citation:** (2006) 3 ILRA 994
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-05-18
- **Case number:** Civil Misc. Writ Petition No.42503 of 2004
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/israr-ahmad-v-devanand-and-others-40720
- **Pages:** 5

## Headnote

Sri Shashi Nandan
Sri R.B. Srivastava
Sri Amar Nath Mishra

U.P.
Urban
Building
(Regulation
of
letting
and
Rent
Control
Act-1972Section 21 (a)(b)-Release application on
the ground of bonafide need-to settled
two unemployed sons as well as for
demolition
and
reconstructionconcurrent findings recorded by the
courts below regarding bonafide needcomparative hardship and dilapidated
condition of the building-can not be
interfered by the writ court by exercising
power as an appellate court.

Held: Para 4

The appellate authority considered the
entire material on the record including
the evidence and affirmed the findings
arrived at by the prescribed authority
with regard to bona fide requirement of
the landlord, comparative hardship and
dilapidated condition of the building
which
requires
demolition
and
reconstruction. Learned counsel for the
petitioner has not been able to point out
any infirmity in the order passed by the
prescribed authority and affirmed by the
appellate authority which may warrant
interference by this Court in exercise of
powers
under
Article
226
of
the
Constitution of India except that he
submitted that the findings recorded by
the prescribed authority and affirmed by
the appellate authority are such that no
reasonable person can arrive at.
Case law discussed:
2004 (3) SCC-682 relied on.

## Text

994 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2006

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No.42503 of 2004

Israr Ahmad

...Petitioner
Versus
Devanand and others ...Respondents

Counsel for the Petitioner:
Sri Ravi Kiran Jain
Sri Ashish Kumar Singh
Sri Mohd. Sarwar Khan

Counsel for the Respondents:
Sri Shashi Nandan
Sri R.B. Srivastava
Sri Amar Nath Mishra

U.P.
Urban
Building
(Regulation
of
letting
and
Rent
Control
Act-1972Section 21 (a)(b)-Release application on
the ground of bonafide need-to settled
two unemployed sons as well as for
demolition
and
reconstructionconcurrent findings recorded by the
courts below regarding bonafide needcomparative hardship and dilapidated
condition of the building-can not be
interfered by the writ court by exercising
power as an appellate court.

Held: Para 4

The appellate authority considered the
entire material on the record including
the evidence and affirmed the findings
arrived at by the prescribed authority
with regard to bona fide requirement of
the landlord, comparative hardship and
dilapidated condition of the building
which
requires
demolition
and
reconstruction. Learned counsel for the
petitioner has not been able to point out
any infirmity in the order passed by the
prescribed authority and affirmed by the
appellate authority which may warrant
interference by this Court in exercise of
powers
under
Article
226
of
the
Constitution of India except that he
submitted that the findings recorded by
the prescribed authority and affirmed by
the appellate authority are such that no
reasonable person can arrive at.
Case law discussed:
2004 (3) SCC-682 relied on.

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

1. This writ petition, by the tenant
under Article 226 of the Constitution of
India, challenge the order dated 19th
August 2004 passed by the appellate
authority under the provisions of U.P. Act
No.13 of 1972 (in short the Act) whereby
the appeal filed by the petitioner-tenant
against the order of the prescribed
authority under the Act dated 17.2.2004 is
dismissed and the application filed by the
respondent-landlords under Section 21 (1)
(a) and (b) of the Act has been allowed by
the
prescribed
authority
and
the
prescribed authority directed release of
the accommodation in dispute in favour of
the landlord.

2. Brief facts are that respondentlandlords' father, Arjun Prasad, filed an
application before the prescribed authority
under Section 21 (1) (a) and (b) of the Act
on the ground that the building in
question is more than 150 years old and
the building is in dilapidated condition
which may fall down any time. Apart
from the above Arjun Prasad also stated
that he has two sons, Devanand and
Vidyanand, who are 38 and 29 years of
age respectively, who could not study
beyond
Intermediate
and
are
still
unemployed. The landlord, therefore,
wanted to settle them in two separate
businesses. It is, therefore, prayed that
premises may be released in favour of the
3 All] Israr Ahmad V. Devanand and others
995
landlord for aforesaid bona fide need. The
landlord filed the aforesaid application
further on the ground that the building is
in a dilapidated condition which requires
demolition
and
reconstruction.
The
landlord further submitted that in order to
settle the two sons, Devananad and
Vidyanand, the landlord's need is bona
fide. On the question of comparative
hardship the landlord stated that the tenant
will not suffer any hardship because he
has another big house in the same town
Shahganj where he can easily shift his
business. The aforesaid allegations were
denied by the tenant who filed a written
statement. It would not be out of place to
mention that during the pendency of the
said
application
Arjun
Prasad,
the
landlord, died and his sons, Devanand and
Vidyanand were substituted and they filed
affidavit.
The
tenant
denied
the
allegations made by the landlord and
stated that the building is not 150 years
old as alleged by the landlord and that it is
not
in
dilapidated
condition
which
requires demolition and reconstruction.
The building is in good condition and in
the adjoining shop itself Arjun Prasad was
carrying on business which is now looked
after by his two sons and his widow.
Therefore, it is submitted by the tenant
that the need of the landlord is flimsy,
what to say of bona fide. The tenant has
also raised the plea that two brothers Israr
Ahmad and Irshad Ahmad were carrying
on business in the shop in dispute from
the time of their father, Shamsuddin,
under the name and style of Firm
Shamsuddin Irshad Ahmad and the
landlord has deliberately not impleaded
Irshad Ahmad who is also carrying on
business in the shop in dispute and has
inherited the tenancy. The tenant has also
raised a plea that apart from two sons of
deceased Arjun Prasad the widow of
Arjun Prasad and his daughters also
inherited the property but have not been
impleaded. Therefore, for this reason
alone the application is liable to be
dismissed. Since Irshad Ahmad has not
been
impleaded
as
respondent
the
application is liable to be dismissed on
this ground also. On the question of bona
fide need the tenant has stated that the
landlord
possesses
much
more
accommodation that what is required and
in case they want to set up business they
have ample accommodation at their
disposal. Therefore, the need of the
landlord cannot be said to be either bona
fide or pressing. It is also stated by the
tenant that in case the landlord require the
accommodation in dispute they would
have not let out a shop 10 years ago. The
tenant also denied the case of the landlord
for demolition and reconstruction. The
tenant's contention is that the landlord has
not complied with the provisions of the
Act and the Rules of submitting necessary
documents which requires support of an
application under Section 21 (1) (b) of the
Act. The landlord has not also complied
with the provisions of Rule 17 of the U.P.
Urban Buildings (Regulation of Letting,
Rent and Eviction) Rules, 1972. The shop
in dispute, as the tenant says, was
occupied on rent by the father of the
preset tenants who started a cloth business
from the shop in dispute which is
continuously being carried on and,
therefore, the shop has earned a goodwill
and in case the tenants are shifted from
the shop they will lose the goodwill. The
tenants do not have any other shop where
they can shift their business and carry on
their business. The shop cannot be said to
be in a dilapidated condition which
requires demolition and reconstruction.
996 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
3. Before the Prescribed authority,
after exchange of pleadings and evidence
on the record the prescribed authority
dealt with the objection raised by the
tenant and found that the question that all
the heirs of Arjun Prasad halve not been
impleaded does not in any way effect the
maintainability
of
application
under
Section 21 (1) (a) of the Act as two sons
are already there. On the question of
brother of petitioner being not impleaded
the prescribed authority found from the
evidence that the brother of the petitionertenant is in service outside India which is
clear from the evidence on the record. On
the
question
of
building
being
in
dilapidated
condition
after
assessing
evidence of both the sites the prescribed
authority found that the building is in
dilapidated
condition
which
requires
demolition and reconstruction. On the
question of bona fide requirement the
prescribed authority recorded a finding
that
the
landlord
requires
the
accommodation in dispute bona fide as
the accommodations which are suggested
by the tenant were either not commercial
accommodations or were occupied by the
tenants. Thus the prescribed authority
found that the need of the landlord is bona
fide. On the question of comparative
hardship the prescribed authority found
that the tenant has a big house on the road
side to which the tenant can shift t his
business. The objection of the tenant is
that the building suggested by the
landlord is in residential locality whereby
the business of the tenant cannot be
shifted. The prescribed authority recorded
a
finding
that
the
residential
accommodation of the tenant is situate on
50 feet wide road side. It was, therefore,
found by the prescribed authority that it
will not affect the tenant in any way if he
shifts to the aforesaid accommodation. On
the question of loss of goodwill the
prescribed authority found that mere
shifting of business will not cause loss of
goodwill. On the question of building
being dilapidated condition the prescribed
authority found that on the evidence on
the record the building is in dilapidated
condition which requires demolition and
reconstruction.
Thus
the
prescribed
authority allowed the application filed by
the landlord and directed release of
accommodation in favour of the landlord.

4. Aggrieved by the order passed by
the
prescribed
authority
the
tenant
preferred an appeal before the appellate
authority as contemplated under Section
22 of the Act. Before the appellate
authority the same arguments were
advanced as w ere advanced before the
prescribed
authority.
The
appellate
authority considered the entire material on
the record including the evidence and
affirmed the findings arrived at by the
prescribed authority with regard to bona
fide
requirement
of
the
landlord,
comparative hardship and dilapidated
condition of the building which requires
demolition and reconstruction. Learned
counsel for the petitioner has not been
able to point out any infirmity in the order
passed by the prescribed authority and
affirmed by the appellate authority which
may warrant interference by this Court in
exercise of powers under Article 226 of
the Constitution of India except that he
submitted that the findings recorded by
the prescribed authority and affirmed by
the appellate authority are such that no
reasonable person can arrive at. This
argument of the learned counsel for the
petitioner cannot be accepted in view of
law laid down by the Apex Court in the
case of Ranjeet Singh v. Ravi Prakash,
(2004) 3 SCC 682, wherein the Apex
3 All] Israr Ahmad V. Devanand and others
997
Court has held that this Court under
Article 226 of the Constitution of India
cannot re-evaluate or reappraise the
evidence on the record that what has been
arrived at by the prescribed authority and
affirmed by the appellate authority unless
the findings arrived at by the prescribed
authority and affirmed by the appellate
authority is demonstrated either perverse
or suffering from manifest error of law.
Nothing of the sort has been demonstrated
by the learned counsel for the petitioner
that either the findings arrived at by the
prescribed authority and affirmed by the
appellate authority are perverse or suffer
from any manifest error of law.

5. Before this Court learned counsel
for the petitioner submits that by filing
amendment
application
seeking
amendment, which was allowed to the
effect that in the original application filed
by the landlord it has not been pleaded
that the son Devanand whose need has
been found favour by the prescribed
authority and affirmed by the appellate
authority, this statement is incorrect. A
perusal of the application filed by the
landlord under Section 21 (1) (a) and (b)
of the Act before the prescribed authority
categorically states in para 3 that the
landlord had two sons, Devanand and
Vidyanand, aged 38 years and 29 years
respectively. They have studied only up to
Intermediate
and
that
the
landlord
requires the disputed accommodation for
their bona fide requirement.

6. No other arguments were
advanced.

In view of what has been stated
above the writ petition has no merits and
is dismissed.

7. Lastly it is submitted by the
learned counsel for the petitioner that
since the petitioner is carrying on business
since long time, he needs some reasonable
time to vacate the accommodation in
question. Considering the facts and
circumstances of the case and in the
interest of justice I direct that the order of
eviction of the petitioner shall not be
executed for a period of six months from
today, 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
accommodation in question to the
landlord on or before 15th November
2006;
2.
the petitioner pays the entire arrear of
rent/damages calculated at the rate of
rent within 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. The amount if
deposited
before
the
prescribed
authority by the petitioner-tenant, the
landlord
shall
be
permitted
to
withdraw the same.
Provided also that the building being
in dilapidated condition may not fall
down.

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

 Petition Dismissed.
---------
998 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2006

BEFORE
THE HON'BLE R.K. RASTOGI, J.

Criminal Revision No. 966 of 1987

Dhruv

...Applicant (In Custody)
Versus
State of U.P.
 ...Opposite Party

Counsel for the Applicant:
Sri J.P. Gupta
Sri B.N. Singh
Sri Umesh Vats

Counsel for the Opposite Party:
A.G.A.

Prevension of Food Adulteration Act,
Section 7/16-Adulteration in wheat flour
sample
taken
on
22.8.83
by
Food
Inspector-according to report of public
analyst-adulteration
found
proved2.2.87 conviction with 6 month simple
imprisonment with fine of Rs.1000/-
Appeal
dismissed
8.6.87-statement
recorded u/s 313 revisionist was 30
years-after
long
gap
of
23
yearsconviction reduced to already undergone
with
enhancement
of
fine
up
to
Rs.2000/- accordingly revision partly
allowed.

Held: Para 7

Learned A.G.A. opposed the prayer of the
accused revisionist. He contended that
the sentence of minimum six months
imprisonment has been provided under
section 16 of the P. F. Act and so the
imprisonment can not be reduced. It is,
however, to be seen that it has been
provided in this very section that the
court in special circumstances can award
lesser
punishment
after
recording
reasons. It is also to be seen that in the
present case the accused was convicted
for sale of adulterated flour which took
place in the year 1983. Now the accused
revisionist is aged about 50 years and as
such, I am of the view that taking into
consideration this long gap of 23 years
between the date of the incident and the
date of judgment by this Court as well as
the present age of the accused, it would
not be appropriate to send him to Jail
again for undergoing the remaining
period of imprisonment. As such I am of
the view that instead of ordering him to
undergo remaining part of sentence of
imprisonment awarded to him the period
of imprisonment should be reduced to
the period already undergone by him and
the amount of fine should be enhanced
to Rs.2000/-.

(Delivered by Hon'ble R.K. Rastogi, J.)

1. This is a revision against the
judgment and order dated 8.6.1987 passed
by Sri Raghunath Prasad, then II Addl.
Sessions Judge, Deoria in Criminal
Appeal No. 7 of 1987, Dhruv Vs. State of
U.P.

2. The facts relevant for disposal of
this revision are that on 22.8. 1983 the
complainant, Food Inspector visited the
grocery shop of the accused revisionist
and took sample of wheat flour from his
shop. It was sent to the public analyst for
examination, and according to the report
of the Public Analyst, it was adulterated.
Then a notice under section 13 (2) of P.F.
Act was given to him and after obtaining
sanction of the C.M.O. a complaint was
filed against him.

3. Learned Magistrate summoned
the accused and framed charges against
him under section 7/16 of the P F. Act.
The
complainant,
Food
Inspector
examined himself as P.W. 1 and narrated
the entire case on oath. He also examined
Sri Gomti Prasad (P.W.2) an eye witness