# Lalji Keshwarwani v. IV Addl. Distt. Judge, Pratapgarh & Ors

- **Citation:** (2019) 2 ILRA 1134
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-18
- **Case number:** Rent Control No. 123 of 2004
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalji-keshwarwani-v-iv-addl-distt-judge-pratapgarh-ors-44569
- **Pages:** 10

## Headnote

Letting, Rent and Eviction) Act, 1972-
Notice under section 106 of Transfer of
Properties Act-Section 21(1)A. of U.P. Urban
Buildings Act, 1972- application for release
of the disputed shop - 'The Tenant cannot
suggest to the landlord to run his business
from some other place'. (Para 3 &18)

The landlord offered to the tenant that after
construction of the shop, he will be provided one
shop to run his business of dentist and the
tenant refused the same and suggested to the
landlord to run his business at some other place,
which was accepted by the appellate Court.

Held:- The tenant cannot dictate to the landlord
as to how the property belonging to the landlord
should be utilized by him for the purpose of his
business. It was further recorded that the
landlord is doing business from various other
premises cannot for close his right to seek
eviction from the tenanted premises so long as
he intends to use the tenanted premises for his
own business - 'The tenant cannot suggest to
the landlord to run his business from some other
place'. (Para 16 ,17,18)

Writ petition allowed (E-7)

List of Cases Cited: -

## Text

1134 INDIAN LAW REPORTS ALLAHABAD SERIES
against the aforesaid three petitioners are
hereby quashed. The petitioners shall be
set at liberty forthwith unless wanted in
any other case. There is no order as to
costs.
----------

(2019)10ILR A 1134

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.09.2019

BEFORE

THE HON'BLE IRSHAD ALI, J.

Rent Control No. 123 of 2004

Lalji Keshwarwani ...Petitioner
Versus
IV Addl. Distt. Judge, Pratapgarh & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri G.C. Sinha, Sri A.K. Pandey Bistaul, Sri
Ashok Kumar Dwivedi, Sri Atul Kumar
Dwivedi, Sri Manish Kumar, Sri S.A. Khan

Counsel for the Respondents:
C.S.C., Sri Niranjan Singh

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972-
Notice under section 106 of Transfer of
Properties Act-Section 21(1)A. of U.P. Urban
Buildings Act, 1972- application for release
of the disputed shop - 'The Tenant cannot
suggest to the landlord to run his business
from some other place'. (Para 3 &18)

The landlord offered to the tenant that after
construction of the shop, he will be provided one
shop to run his business of dentist and the
tenant refused the same and suggested to the
landlord to run his business at some other place,
which was accepted by the appellate Court.

Held:- The tenant cannot dictate to the landlord
as to how the property belonging to the landlord
should be utilized by him for the purpose of his
business. It was further recorded that the
landlord is doing business from various other
premises cannot for close his right to seek
eviction from the tenanted premises so long as
he intends to use the tenanted premises for his
own business - 'The tenant cannot suggest to
the landlord to run his business from some other
place'. (Para 16 ,17,18)

Writ petition allowed (E-7)

List of Cases Cited: -

1. Anil Bajaj & anr. Vs Vinod Ahuja (2014) 15 SCC 610

2. Radhey Shayam Agarwal Vs Addl. Distt. and
Sessions Judge Court No.13 Lko. Anr. 2006
(24) LCD 1141

3. Zareena Haider & anr. Vs Special Judge E.C.
Act/ADJ, LKO. & anr. 2013 (31) LCD 2396

4. Dr. Iqbal Ahmad Vs 2nd Additional Distt.
Judge, Ballia & anr. 2005 (23) LCD 221

5. Krishna Kumar Rastogi Vs Sumitra Devi
(2014) 9 SCC 309

6. B.C. Bhutada Vs G.R. Mundada and Salim Khan Vs
IVth Addl. Distt. Judge Jhansi (2006) 1 ARC 588

7.
Badrinarayan
Chunilal
Bhutada
Vs
Gonindram Ramgopal Mundad AIR 2003 SC
2713 (2003) 2 SCC 320
(Delivered by Hon'ble Irshad Ali, J.)

1) Heard Sri Manish Kumar, learned
Senior Counsel assisted by Sri Atul Kumar
Dwivedi, learned counsel for the petitioner
and to the learned Additional Chief Standing
Counsel on behalf of State respondent.

2) In spite of service of notice, no
one has appeared on behalf of respondent
Nos.2 and 3.

3) Factual matrix of the case is that
the petitioner purchased a portion of the
2 All. Lalji Keshwarwani Vs IV Addl. Distt. Judge, Pratapgarh & Ors.
1135
building including the disputed shop in
occupation of respondent No.2 on 16.08.1988.
A notice was issued to the respondent No.2 on
28.10.1991 under Section 106 of the Transfer of
Properties Act and thereafter, an application
under Section 21(1)(a) of U.P. Act No.13 of
1972 was filed for release of the disputed shop
on 03.09.1994. The respondent No.2 filed
written statement on 13.09.1995. The prescribed
authority after hearing the parties and taking into
consideration the contents of the release
application as well as the written statement filed
by the respondents by taking notice of the
ingredients required to be considered, passed an
order for release of the shop on 18.05.1996. The
respondent No.2 preferred an appeal against the
order passed by the prescribed authority, which
was allowed dismissing the application for
release filed under Section 21(1)(a) of U.P. Act
No.13 of 1972.

4) Assailing the order passed by the
appellate authority, submission of learned
Senior Counsel for the petitioner is that
the appellate Court while passing the
impugned order has ignored the finding
returned by the prescribed authority on
the bonafide requirement and comparative
hardship of the petitioner. In support of
submission advanced on the point of
bonafide requirement and comparative
hardship, learned Senior Counsel for the
petitioner has placed reliance upon certain
judgments, which are as under:

i) Anil Bajaj and another Vs.
Vinod Ahuja; 2014 (15) SCC 610,
paragraph Nos.6 to 8.

ii) Radhey Shayam Agarwal
Vs. Addl. District and Sessions Judge,
Court No.13 Lucknow and another;
2006 (24) LCD 1141, paragraph Nos.16
to 18.

iii) Zareena Haider and others
Vs.
Special
Judge
E.C. Act/ADJ,
Lucknow and others; 2013 (31) LCD
2396, paragraph Nos.12, 16 to 18.

iv) Dr. Iqbal Ahmad Vs. 2nd
Additional District Judge, Ballia and
another; 2005 (23) LCD 221, paragraph
No.10, 12, 13 and 14.

v) Krishna Kumar Rastogi Vs.
Sumitra Devi; (2014) 9 SCC 309,
paragraph No.9.

5) He further submitted that the
appellate court has misread the provisions
contained under Rule 17 framed under the
Act of 1972. He submitted that Rule 17 of
the Act applies in the case, wherein
application has been moved under Section
21(1)(b) of the Act of 1972. Thus, his
submission is that the provisions referred
while passing the impugned order is not
attracted
to
the
present
facts
and
circumstances of the case.

6) He next submitted that the
respondent No.2 was offered that after
construction of the shop, he will be
provided one shop to run his business of
Dentist and the same was refused by him,
thus, the appellate court on wrong
premises has proceeded to allow the
appeal
and
dismissed
the
release
application.

7) He further submitted that the
appellate court cannot suggest to the
landlord to run his business at other place
taking into consideration the suggestion
of the tenant to run his business.

8) Learned Senior Counsel for the
petitioner further invited attention of this
Court on the written statement filed by the
respondent No.2; annexure No.3 to the
writ petition and pointed out that it is
admitted case of the respondent No.2 that
the petitioner and his two sons are
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
running the business at Gallamandi, thus,
his submission is that the appellate court
while passing the impugned order has
ignored the admission of the tenant in the
written statement.

9) In view of the above, his
submission is that, the appellate court has
committed gross illegality in passing the
impugned order, therefore, the same is not
sustainable in law.

10)

I
have
considered
the
submission advanced by learned counsel
for the petitioner and perused the material
on record as well as the law reports relied
upon by learned Senior Counsel for the
petitioner and the counter affidavit filed
by learned counsel for respondent Nos.2
and 3.

11) To resolve the controversy
involved in the present writ petition, the
provisions
contained
under
Section
21(1)(a) of U.P. Act No.13 of 1972 is
being quoted below:

"21. Proceeding for release of
building under occupation of tenant. -
(1)(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."

12) On its perusal, it is evident that
while considering the release application,
the prescribed authority has to consider
the bonafide requirement, comparative
hardship and irreparable loss and injury.

13) The prescribed authority while
dealing with the matter of release
application, on perusal of the evidence
and material on record, passed the order
holding that the petitioner has made out a
case
for
release
of
shop
and
in
comparison of the tenant, the bonafide
requirement and comparative hardship are
in favour of the landlord.

14) In support of submission
advanced, learned Senior Counsel for the
petitioner relied upon certain judgments,
which are as under:

i) Anil Bajaj and another Vs.
Vinod Ahuja (Supra):

"6. In the present case it is clear
that while the landlord (appellant No. 1)
is carrying on his business from a shop
premise located in a narrow lane, the
tenant is in occupation of the premises
located on the main road which the
landlord considers to be more suitable for
his own business. The materials on
record, in fact, disclose that the landlord
had offered to the tenant the premises
located in the narrow lane in exchange
for the tenanted premises which offer was
declined by the tenant. It is not the
tenant's case that the landlord-appellant
No. 1 does not propose to utilize the
tenanted premises from which eviction is
sought for the purposes of his business. It
is also not the tenant's case that the
landlord proposes to rent out/keep vacant
the tenanted premises after obtaining
possession thereof or to use the same is
any way inconsistent with the need of the
landlord. What the tenant contends is that
the landlord has several other shop
houses from which he is carrying on
different business and further that the
landlord has other premises from where
the business proposed from the tenanted
2 All. Lalji Keshwarwani Vs IV Addl. Distt. Judge, Pratapgarh & Ors.
1137
premises can be effectively carried out. It
would hardly require any reiteration of
the settled principle of law that it is not
for the tenant to dictate to the landlord as
to how the property belonging to the
landlord should be utilized by him for the
purpose of his business. Also, the fact that
the landlord is doing business from
various other premises cannot foreclose
his right to seek eviction from the
tenanted premises so long as he intends to
use the said tenanted premises for his own
business.

7. The grounds on which leave
to defend was sought by the tenant and
has been granted by the High Court runs
counter to the fundamental principles
governing the right of a tenant to contest
the claim of bonafide requirement of the
suit premises by the landlord under the
Delhi Rent Control Act, 1958. Even
assuming the assertions made by the
tenant to be correct, the same do not
disclose any triable issue so as to entitle
the tenant to grant of leave to defend.

8. We are, therefore, of the view
that the impugned order dated 20.09.2012
of the High Court of Delhi is not legally
sustainable. We, accordingly, set aside
the same and allow this appeal and
restore the order dated 02.09.2011 passed
by the learned Additional Rent Controller,
Delhi."

ii) Radhey Shayam Agarwal Vs.
Addl. District and Sessions Judge,
Court No.13 Lucknow and another
(Supra):

"16. The tenant Puttan Lal was
required to demonstrate before this Court
by passing a specific order as to what
efforts he had made to find out alternative
accommodation for his residential or
commercial purpose since November,
1988 when the release application was
filed. He has filed an affidavit dated
5.4.2006 indicating that he cannot afford
to pay more than Rs. 100 as against Rs.
20 per month presently being paid as rent
for any other shop in the nearby locality
and that he failed to get a shop at this
rent. He has reiterated in the affidavit that
the
landlord
is
having
sufficient
residential accommodation and shops in
the city of Lucknow, which fact has been
denied by the petitioner. As per Sri S.M.K.
Chaudhary, learned Counsel for the
petitioner,
several
shopping
and
residential complexes have come up in
New
Hyderabad.
Nishatganj
and
adjoining
areas.
Besides,
several
residential colonies of U.P. Housing and
Development
Board,
Lucknow
Development
Authority
and
other
cooperative societies have come up in the
nearby areas. Land for housing and
commercial use is available to the public
and can be purchased through loans on
lower rate of interest offered by the
nationalized and co-operative banks.
These facilities ought to have been
availed by the tenant, opposite party No.
2. There is no force in the submission of
Sri M.S. Kotwal, learned Counsel for
opposite
party
No.
2
that
no
accommodation was available to the
tenant and that he cannot afford to pay
more than Rs. 20 per month. The Hon'ble
Supreme Court of India and this Court in
recent decisions, as in B.C. Bhutada v.
G.R. Mundada and Salim Khan v. IVth
Additional District Judge. Jhansi 2006 (1)
ARC 588, have held that where the
tenants did not show what efforts they
made to search alternative premises, it is
sufficient to tilt the balance of hardship
against them. Even under Rule 10(3) of
the Rules the tenant has failed to
demonstrate whether he had filed any
application to the appropriate authority
for allotment of another accommodation.
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
Thus, despite an opportunity being given
by this Court, the respondent No. 2 has
failed to demonstrate his serious efforts, if
any, made for finding out alternative
accommodation or submission of any
such allotment application as provided
under Rule 10(3) of the Rules. Thus, the
question of comparative hardship ought
to have been decided by the appellate
authority
against
the
tenant.
The
judgment and order passed by the
appellate court Is, therefore, wholly
erroneous and unsustainable in law. I find
support in my view from the Judgments of
the Hon'ble Supreme Court of India as in
2005 (2) ARC 793.

17. The appellate authority has
also ignored the finding of the learned
prescribed authority that the landlord has
a right to use the premises for expanding
his business and augment his income vide
Gaya Prasad v. Pradeep Srivastava
(2001) 2 SCC 604. The Hon'ble Supreme
Court
in
another
Judgment
in
Ragavendra
Kumar
v.
Firm
Prem
Machinery and Co. , has held that it is a
settled position of law that the landlord is
the best Judge of his requirement for
residential or business purpose and he
has got complete freedom in the matter. In
the said case, the plaintiff landlord
wanted the eviction of the tenant from the
suit premises for starting his business as
it was suitable and it cannot be faulted.
Similar views have been expressed in
G.C. Kapoor v. Nand Kumar Bhasin and
Ors. This Court in Smt. Nirmala Tandon
and Ors. v. Xth Additional District Judge,
Kanpur Nagar and Ors. 1996 (2) ARC
409 : 1997 (1) AWC 2.59 (NOC) and
Shree Chand Gupta v. XVIIIth Additional
District Judge, Meerut and Ors. , has also
dealt with the issue that a finding of fact
may be interfered with when it is based on
account of wrong application of principle
of law relevant thereto or relevant
material
has
not
been
taken
into
consideration, or a finding is otherwise
arbitrary or perverse. These elements are
present in this case. I find force in the
submissions
made
by
Sri
S.M.K.
Chaudhary, learned Counsel for the
petitioner which are squarely covered by
the case-laws cited by him. as referred to
above. On the other hand, the decisions
cited by Sri M. Section Kotwal, learned
Counsel for the opposite party No. 2, as
referred to above, cannot be applied in
the present set of circumstances.

18. In the opinion of this Court,
the view taken by the appellate authority
is highly erroneous in law. The tenant is
already having in his possession a portion
of the building for residential purpose. It
is an uncontroverted fact that he has
purchased a double-storyed House No. 9.
Gopi
Nath
Building,
R.B.L.
Road,
Lucknow where he and his family are
residing or if not residing, he can
continue in the portion of the building
which is still under his occupation. He
has
not
searched
alternative
accommodation. These facts by itself are
sufficient to decide the question of
comparative hardships against the tenant.
The Hon'ble Supreme Court of India in
the case of Siddalingama v. M. Shenoy
2002 (46) ALR 18 (SC), has held that the
entire Rent Control Act is basically meant
for the benefit of the tenant and provision
of release on the ground of bona Jlde
need is the only provision which treats the
landlords with some sympathy."

iii) Zareena Haider and others Vs.
Special Judge E.C. Act/ADJ, Lucknow
and others (Supra):

"12. This finding of the lower
appellate court is utterly erroneous in
law. Bona fide need does not mean dire
need vide Dattatraya Laxman Kamble v.
2 All. Lalji Keshwarwani Vs IV Addl. Distt. Judge, Pratapgarh & Ors.
1139
Abdul Rasul Moulali Kotkunde & Anr.,
AIR 1999 SC 2226. Landlords cannot be
compelled to use verandas as rooms to
fulfil their need so that tenant may
continue to enjoy possession of the
tenanted accommodation. Verandahs are
not built to be used as rooms etc. Supreme
Court in Sarla Ahuja v. United India
Insurance Company Limited, AIR 1999
SC 100 has held that tenant cannot
dictate the landlord as to how he should
satisfy his need without disturbing the
tenant. Same view has been taken in the
following authorities:

(i)
Prativa
Devi
v.
T.V.
Krishnan, 1996 (5) SCC 353

(ii)Ragavendra Kumar v. Firm
Prem Machinary & Co., AIR 2000 SC 534

(iii) R.C. Tamrakar and anr. v.
Nidi Lekha, AIR 2001 SC 3806 (para-10)

(iiv) Dinesh Kumar Vs. Yusuf
Ali, AIR 2010 SC 2679 (para-8).

16.
Regarding
comparative
hardship, the lower appellate court held
that
the
tenants
were
using
their
residential house at Pan Dariba for
running printing and publishing business
hence
they
had
no
alternative
accommodation and as their family
consisted of 16 members, hence they
would be thrown on street in case of
eviction. Prescribed Authority had held
that tenants were quite wealthy and were
paying very good income tax. All these
aspects were not touched by the lower
appellate court.

17. There cannot be any doubt,
looking to the number of family members
and their professions, that the landlords
required
additional
accommodation.
Tenants were having a residential house
but they were using the same for
commercial purposes. The house in
dispute is situate at a famous busy road,
hence the area where it is situate is more
beneficial for advocates chamber. As held
by the Supreme Court in "Chandrika
Prasad v. Umesh Kumar Verma" AIR
2002 SC 108 a less advantageous
accommodation available to the landlord
is no ground to reject the release
application for a more advantageous
accommodation in occupation of tenant.
In the said case, accommodation was
required for establishing clinic for doctor
son-in-law of the landlord. The Supreme
Court held that the fact that the father of
the son-in-law of the landlord possessed a
house in a less important area was
immaterial.

18.
Supreme
Court
in
Badrinarayan
Chunilal
Bhutada
v.
Gonindram Ramgopal Mundada, AIR
2003 SC 2713 : 2003 (2) SCC 320 (para8) has held that bona fide requirement of
landlord implies an element of necessity.
The necessity is a necessity without
regard to the degree of which it may be.
Degree of urgency or the intensity of felt
need assumes significance for the purpose
of comparative hardship."

iv) Dr. Iqbal Ahmad Vs. 2nd
Additional District Judge, Ballia and
another (Supra):

"10. The main emphasis of the
lower appellate court was on the fact that
landlord could not show that his medical
practice was of such scale which required
more accommodation. Even a Doctor
having small number of patients per day
is
entitled
to
have
reasonable
accommodation for his clinic. Judicial
notice may be taken of the fact that often
allopathic
medicines,
which
are
prescribed by doctors, may be purchased
from any shop. However, Homeopathic
doctors invariably give medicines to the
patients by themselves. No such shop may
be found in any city where Homeopathic
medicines are sold to the patients on the
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
prescription. The tenant suggested that
shop A could be partitioned and in one
portion landlord, doctor could check the
patients and writ prescriptions and from
the other portion his compounder could
give
medicines
to
patients.
This
suggestion was self serving. Tenant has
got no business to dictate the landlord as
to how he can squeeze his need in smaller
portion.

12. Regarding the shop taken on
rent by the tenant, the lower appellate
court accepted the version of the tenant
that he was using the said shop as
godown. If the tenant is using a shop as
godown, it is his look (out). In such
situation it can not be said that the said
shop is not available to the tenant. As the
tenant has already got another shop on
rent, hence question of comparative
hardship has to be decided against him.
Rule 16(2) (b) which is quoted below is
squarely attracted to the fact of the case.

"Rule 16(2)(b):- Where the
tenant has available with him suitable
accommodation to which he can shift his
business without substantial loss there
shall be greater justification for allowing
the application."

13. Even otherwise tenant did
not bring on record any evidence to show
that he made any efforts to purchase or
take
on
rent
any
alternative
accommodation after filing of release
application. It was also very relevant for
deciding the question of comparative
hardship against the tenant (vide AIR
2003 SC 2713).

14.
Alongwith
written
arguments filed by learned counsel for
tenant respondent No.2, copy of an
affidavit of landlord petitioner sworn on
17.1.2001 filed by him before Assistant
Registrar, Funds (sic-Firms), Societies
and Chits, Varanasi Division, Varanasi in
file No.B-3064 has been filed. In para 9 of
the said affidavit it was stated that Javed
Iqbal Ansari (son of petitioner) is head
master of Hazrat Aasi Junior High
School. No notice can be taken of the
copy of a document, which is filed
alongwith written written arguments. The
said copy has not been filed alongwith
any affidavit. Even if for the sake of
arguments it is accepted that the son of
landlord is head master in some school
still the fact remains that tenant has
categorically admitted that in the shop
shown by letter C in the map landlord has
installed
Photostat
and
lamination
machines. If the statement of the tenant
that son of the landlord is head master in
school is taken to be correct then it would
mean that landlord himself is carrying on
the business of making copies from
Photostat machine and laminating the
documents from lamination machine. If
the landlord in addition to his medical
practice in Homeopathy has started the
said business also, then he can not be put
to disadvantage due to that. Tenant
himself repeatedly asserted that landlord
was not having good medical practice. In
view of this no fault can be found with the
landlord if he starts additional business
for augmenting his income. Learned
counsel for tenant respodent also argued
that during the pendency of writ petition
landlord petitioner got vacated some of
his shops from his previous tenant and let
out the same to other tenants. For this
argument no foundation has been laid in
the form of any affidavit hence it cannot
be considered."

v) Krishna Kumar Rastogi Vs.
Sumitra Devi (Supra):

11. In Mohd. Ayub v. Mukesh
Chand, while interpreting the above
provisions of law, this Court has observed
in para 15 as under: (SCC p. 159)
2 All. Lalji Keshwarwani Vs IV Addl. Distt. Judge, Pratapgarh & Ors.
1141

" 15. It is well settled the
landlord's requirement need not be a dire
necessity. The court cannot direct the
landlord to do a particular business or
imagine that he could profitably do a
particular business rather than the
business he proposes to start. It was
wrong on the part of the District Court to
hold that the appellants' case that their
sons want to start the general merchant
business is a pretence because they are
dealing in eggs ?????Similarly, length of
tenancy
of
the
respondent
in
the
circumstances of the case ought not to
have weighed with the courts below."

15) In the case of Anil Bajaj and
another Vs. Vinod Ahuja (Supra) relied
upon by learned counsel for the petitioner,
the landlord was carrying on business
from a shop premises located in a narrow
lane,
whereas
the
tenant
was
in
occupation of the premises located on the
main road, which the landlord considers
to be more suitable for his own business.
The landlord offered to the tenant the
premises located in the narrow lane in
exchange of the tenant's premises, which
was declined by the tenant. The tenant
contended that the landlord has several
other shops and houses, from where he is
carrying out his business and suggested
that he can run his shop in other available
shops to him.

16) After considering the material
evidence on record, the court held that the
tenant cannot dictate to the landlord as to
how the property belonging to the
landlord should be utilized by him for the
purpose of his business. It was further
recorded that the landlord is doing
business from various other premises
cannot forclose his right to seek eviction
from the tenanted premises so long as he
intends to use the tenanted premises for
his own business.

17) In the case in hand, the landlord
offered
to
the
tenant
that
after
construction of the shop, he will be
provided one shop to run his business of
dentist and the tenant refused the same
and suggested to the landlord to run his
business at some other place, which was
accepted by the appellate Court.

18) In view of the above, the ratio of
the judgments referred herein above, is
fully applicable to the present facts and
circumstances of the case, therefore, this
Court is of the opinion that the tenant
cannot suggest to the landlord to run his
business from some other place.

19) In the case of Radhey Shayam
Agarwal Vs. Addl. District and Sessions
Judge, Court No.13 Lucknow and
another (Supra), the question was that
since the application for release was filed,
what effort had been made to find out
alternative accommodation for residential
or commercial purposes since the date the
release application was filed. The claim
was setup by the tenant that the landlord is
having
sufficient
residential
accommodation and shops in the city of
Lucknow, which was denied by the
petitioner-landlord.
Considering
the
judgment of Hon'ble Supreme Court in the
case of B.C. Bhutada v. G.R. Mundada
and Salim Khan v. IVth Additional
District Judge. Jhansi 2006 (1) ARC
588, it was held that where the tenant did
not show the effort made to search
alternative premises, it is sufficient to tilt
the balance of hardship against him. The
tenant failed to establish that he filed any
application to the appropriate authority for
allotment of another accommodation.
1142 INDIAN LAW REPORTS ALLAHABAD SERIES

20) In the present case, the appellate
authority has failed to appreciate that the
tenant has ever tried to search out any
other alternative accommodation during
pendency of the release application. Thus,
in the opinion of the Court, the appellate
authority is highly erroneous in law in
proceeding to pass the impugned order.

21) In other two judgments in the
cases of Zareena Haider and others
Vs. Special Judge E.C. Act/ADJ,
Lucknow and others (Supra) and Dr.
Iqbal Ahmad Vs. 2nd Additional
District Judge, Ballia and another
(Supra), the court has proceeded to
hold that the landlord cannot be
compelled by the tenant to run his shop
in an accommodation, which is not
feasible
to
run
the
shop/business.
Hon'ble Supreme Court in the case of
Badrinarayan Chunilal Bhutada v.
Gonindram Ramgopal Mundada, AIR
2003 SC 2713 : 2003 (2) SCC 320 has
held that the bona fide requirement of
landlord
implies
an
element
of
necessity. The necessity is a necessity
without regard to the degree of which it
may be. Degree of urgency or the
intensity
of
felt
need
assumes
significance
for
the
purpose
of
comparative hardship.

22) The appellate court in the
present case, in spite of considering the
hardship of the landlord, has proceeded
to suggest on otherwise considerations
to fulfill the need of the landlord. The
counter
affidavit
filed
by
learned
counsel for respondent Nos.2 and 3
supports the contents made in the
written
statement
filed
before
the
prescribed authority as well as before
the appellate court, which denies the
offer made by the landlord to provide
one shop after construction of the shop
to run business to the tenant of dentist,
which was refused by the respondent
Nos.2 and 3. This act of the tenant
cannot be justified in law.

23) On over all consideration and on
perusal of the material on record as well
as the judgments referred herein above, it
is well established that the appellate court
has committed manifest error of law in
dismissing the release application and
allowing the appeal. The appellate court
has not considered the finding recorded
by the prescribed authority in allowing the
application for release of the shop and by
ignoring the same has proceeded to pass
the impugned order. The appellate court
has mis-read the applicability of the
provisions of Rule 17 framed under U.P.
Act No.13 of 1972 and has wrongly
applied to the facts and circumstances of
the present case. Rule 17 of the Act of
1972 applies, in case the application has
been moved on the ground that the
building is in dilapidated condition and
after its demolition fresh construction
shall be made.

24) The judgment and order passed
by the appellate court suffers from
apparent
illegality
and
cannot
be
sustained. In view of the observation
made above, the impugned order dated
12.08.2004 being not sustainable in law is
hereby set aside.

25) The writ petition succeeds and
is allowed. It is, however, directed that
the opposite parties shall vacate the
disputed
premises/shop
within
the
period specified by the prescribed
authority
under
the
order
dated
18.05.1996.
----------
2 All. Smt. Bitti & Ors. Vs Abdul Farookh @ Kallu & Anr.
1143
(2019)10ILR A 1143

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2019

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

FAFO No. 3189 of 2003
&
FAFO No. 3188 of 2003

Smt. Bitti & Ors. ...Appellants
Versus
Abdul Farookh @ Kallu & Anr.
 ...Respondents

Counsel for the Appellants:
Sri R.K. Porwal

Counsel for the Respondents:
Sri Nripendra Misra

A.
Motor
Accident
Claim
-Composite
Negligence-Apportionment of compensationApportionment of compensation between
two tort feasors vis a vis the claimant is
not permissible - Claimant is entitled to
sue both or any one of the joint tort
feasors
and
to
recover
the
entire
compensation - as liability of joint tort
feasors is joint and several. (Para 13)
B. Motor Accident Claim - Extent of
composite negligence - Not appropriate
for the court/tribunal to determine the
extent of composite negligence of the
drivers of two vehicles - Joint tort feasor,
in case he so desires, to sue the other
joint
tort
feasor
in
independent
proceedings after passing of the decree
or award. (Para 13)
C. Motor Accident Claim - Negligence -
Negligent act must contribute to the
accident having taken place - Insurance
company failed to prove that accident
occurred due to carrying of person as
pillion rider, cannot be benefited. (Para 11)
Appeal Partly allowed (E-5)
List of cases cited: -
1.Pawan Kumar & anr. Vs M/S Harkishan Dass
Mohan Lal & ors. (SC) decided on 29 January, 2014
2.Archit Saini & anr. Vs Oriental Insurance
Company Ltd. AIR 2018 SC 1143
3.Khenyei Vs New India Assurance Company
Ltd. & ors. 2015 Law Suit (SC) 469
4.National Insurance Co. Ltd. Vs Challa
Bharathamma & ors. reported in [2004 (8)
SCC 517]
5.Bithika Mazumdar Vs Sagar Pal (2017) 2 SCC 748
6. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors. F.A.F.O No. 1818 of
2012 decided on 19.7.2016

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri R.K. Porwal, learned
counsel for the appellants for the appeals
and Sri Nripendra Misra, learned counsel
for the respondents in both the appeals.

2. Both these appeals, at the behest
of the claimants, challenges the judgment
and award dated 30.09.2003 passed by
Motor Accident Claims Tribunal/Special
Judge (E.C.) Act, Etawah (hereinafter
referred to as 'Tribunal') in M.A.C.P. No.
45 of 2000 and M.A.C.P. No.44 of 2000.

3. Brief facts of the litigation are
that on 28.11.1999 at about 05 p.m. on
Mathura Agra road near village Mahuaa
the deceased was plying his scooter
bearing No. D.L. 8 C 3277 and Prem
Singh and his minor son were going at
that time a Tata Sumo Bearing No. M.P. 7
H 4155 coming from Agra driven rashly
and negligently drag with the scooter.
Jagmohan and his son met with serious