# Mohd. Ishaq v. A.D.J. / Spl. Judge (S.C./S.T. Act), Jhansi & Anr

- **Citation:** (2023) 5 ILRA 1617
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-12
- **Case number:** Writ-A No. 59655 of 2011
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ishaq-v-a-d-j-spl-judge-s-c-s-t-act-jhansi-anr-50231
- **Pages:** 13

## Headnote

Law-The
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent and
Eviction)
Rules,
1972-Rule
18(2)
-
Provisions of Rule 18 are directory and not
mandatory. (Para 23-26)

The
Uttar
Pradesh
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 -Sec 21(1) (a)-No perversity
about the findings on the question of bona
fide need-The various shops that have
been referred to by the tenant as ones
available to the landlord, either do not
belong
to
the
landlord
or
are
not
available-In a case where the tenant does
not search for alternative accommodation
after landlord initiates proceedings for
release, the answer to the issue of
comparative hardship invariably ought to
be against the tenant-A tenant holding for
rented premises a long period of time on
an absurdly low rent, ought certainly to be
held disentitled, vis-à-vis the landlord,
when
determining
the
issue
of
comparative hardship. (Para 41, 43 & 44)

Petition dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,930 of 45,286. This is a partial read: ask again with offset=39930 for what follows._

5 All. Mohd. Ishaq Vs. A.D.J. / Spl. Judge (S.C./S.T. Act), Jhansi & Anr.
1617
(2023) 5 ILRA 1617
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 59655 of 2011

Mohd. Ishaq ...Petitioner
Versus
A.D.J. / Spl. Judge (S.C./S.T. Act), Jhansi
& Anr. ...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava

Counsel for the Respondents:
Sri Arvind Srivastava, Sri Atul Dayal, Sri Pushkar
Srivastava

Civil
Law-The
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent and
Eviction)
Rules,
1972-Rule
18(2)
-
Provisions of Rule 18 are directory and not
mandatory. (Para 23-26)

The
Uttar
Pradesh
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 -Sec 21(1) (a)-No perversity
about the findings on the question of bona
fide need-The various shops that have
been referred to by the tenant as ones
available to the landlord, either do not
belong
to
the
landlord
or
are
not
available-In a case where the tenant does
not search for alternative accommodation
after landlord initiates proceedings for
release, the answer to the issue of
comparative hardship invariably ought to
be against the tenant-A tenant holding for
rented premises a long period of time on
an absurdly low rent, ought certainly to be
held disentitled, vis-à-vis the landlord,
when
determining
the
issue
of
comparative hardship. (Para 41, 43 & 44)

Petition dismissed. (E-15)

List of Cases cited:
1. Heera Lal Vs IXth A.D.J., Kanpur & ors.,
(2005) 61 ALR 488 (All)

2. Ammal Chandra Dutt Vs Second A.D.J. & ors.,
(1989) 1 SCC 1

3. Sarju Prasad Vs VIIIth A.D.J., Faizabad &
ors., 2007 (2) AWC 1068 (L.B.)

4. Arvind Kumar Mishra Vs Jitendra Kumar
Gupta & ors., 2016 (1) A.R.C. 634.

5. Sheo Shanker Das Vs Special Judge & ors,
2006 (3) ALJ (NOC) 467 (All)

6. Ashok Kumar & ors.Vs Sita Ram, (2001) 4
SCC 478

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a tenant's writ petition
arising out of a judgment and order passed
by Mr. Vigyanram Mishra, the then
Additional District Judge/ Special Judge,
SC/ST Act, Jhansi in Rent Control Appeal
No.6 of 2009, allowing the appeal, setting
aside the judgment and order dated
07.05.2009
made
by
the
Prescribed
Authority and granting the landlord's
application for release under Section
21(1)(a) of U.P. Act No.13 of 1972.

2. An application for release was
made on behalf of Kailash Babu Agrawal
seeking release of Shop No.13, situate at
Mohalla Nanjhai Bazar, Jhansi against the
tenant, Mohd. Ishaq on the ground of his
bona fide need. The application was made
under Section 21(1)(a) of U.P. Act No.13 of
1972 (for short, 'the Act') with a case that
Shop No.13, Nanjhai Bazar, Jhansi (for
short, 'the demised shop') was purchased by
Kailash Babu Agrawal (hereinafter referred
to as 'the landlord') on 11.01.1993 for the
purpose of his own need. It is the landlord's
case that he neither has a house to live or a
shop to carry on business of his own. The
1618 INDIAN LAW REPORTS ALLAHABAD SERIES
demised shop, that is in the tenancy
occupation of Mohd. Ishaq (hereinafter
referred to as 'the tenant') is bona fide
required by the landlord for the purpose of
his residence as well as setting up his shop
to earn his livelihood. Once the demised
shop became available to the landlord, he
would get it redone according to his
requirement, where on the ground floor, he
would carry on a shop for earning his
livelihood, and, on the first floor, set up his
living quarters. For the time being, the
landlord lives in House No.207, Daru
Bhaundela, Jhansi, which is a small house.
It has 5-6 rooms, whereas the landlord's
family has 20 members. The landlord has in
his possession a room of 10x10 feet,
wherein he lives with his wife, a daughter
14 years old and a son aged 10 years, all
with much difficulty.

3. The landlord's mother is sharp
tempered and on account of shortage of
space, there are frequent quarrels between
his wife and mother. Then there is the
landlord's brother, Ramesh Chandra, whose
sons have grown up and the elder son has
got married in the year 2000. The landlord's
mother is under the influence of his elder
brother and insisting that the landlord may
move away to another house. He has no
shop of his own to earn his livelihood. For
sometime past, he would work at Ramesh
Chandra's shop. Ramesh Chandra has now
asked him not to sit on his shop, rendering
the landlord jobless. The relationship
between the two brothers has become
embittered on this account. The demised
shop is dimensioned 12x60 feet, which is
sufficient space for residential purpose. The
tenant fabricates steel almirahs at home and
utilizes the demised shop for the purpose of
selling them. He is retaining possession of
the demised shop in order to extort
premium from the landlord to vacate.

4. Pending the proceeding for release,
through an amendment application, an
amendment was sought to the effect that
the landlord's children have grown up. His
daughter is reading in B.Com. whereas his
elder son reads in Intermediate College.
Both the children need a separate room for
their studies, a fact that has accentuated the
landlord's bona fide need for the demised
shop. It is on these grounds that release of
the demised shop was prayed.

5. The tenant, Mohd. Ishaq put in a
written statement denying the landlord's
case generally. It was averred that the
release application has been made without
basis in order to trouble the tenant on
incorrect facts and to exert unlawful
pressure upon him. It is the tenant's case
that ever since the landlord had purchased
the demised shop, he has been litigating
with the tenant. It is pleaded that P.A. Case
No. 26 of 1993 was instituted on
11.03.1993 on false premises under Section
21(1)(b) of the Act with a case that the
demised shop was in a dilapidated
condition, which was required by the
landlord after reconstruction.

6. The said application was dismissed
by the Prescribed Authority vide judgment
and order dated 07.09.1996. An appeal from
the said order being Rent Control Appeal
No.27 of 1996 was dismissed by the District
Judge of Jhansi by his judgment and order
dated 07.07.2000. Subsequently, the landlord
instituted P.A. Case No.95 of 1994 on
19.08.1994 under Section 21(1)(a) of the Act,
on the same grounds as those urged in the
present application. The Prescribed Authority
rejected that application by a judgment and
order dated 29.01.1998. Against the said
order of the Prescribed Authority, the
landlord carried an appeal to the District
Judge, which was dismissed on 11.05.2001.
5 All. Mohd. Ishaq Vs. A.D.J. / Spl. Judge (S.C./S.T. Act), Jhansi & Anr.
1619

7. It is the tenant's case that on
whatever grounds the earlier
release
application giving rise P.A. Case No.95 of
1994 was instituted and decided against the
landlord
inter
partes,
the
present
application has been brought on the same
grounds. Therefore, findings in the earlier
judgment bar the present proceedings as res
judicata. It is denied that the landlord ever
purchased the demised shop for his need.
To the contrary, the landlord is a member of
a Joint Hindu Family and all of them are
engaged in the trade of gold and silver,
besides being into the business of money
lending. The landlord is a powerful man
and a property dealer, who buys properties
to augment his income. The proceedings
for release are brought against the tenant to
exert undue pressure upon him. The
landlord and his brothers are members of a
joint family.

8. It is pleaded that the landlord has
purchased a shop in the name of his wife,
Meena Agrawal, bearing No. 98, Jawahar
Chowk, Jhansi on 22.11.2001. In addition,
he has purchased another shop in the name
of Manju Agrawal, wife of Sanjay Agrawal
bearing
Shop
No.190,
Bada
Bazar,
Chaudharyana on 2nd of May, 2004 from
its previous owner, Smt. Vimla Devi. It is
said further on that the landlord has also
purchased another shop in the name of
Sanjay Agrawal, bearing No. 22, Jawahar
Chowk, Jhansi, wherein Ram Bihari and
others were tenants. A case was filed
against the tenants in occupation of the said
shop, seeking their eviction. Once the said
tenants vacated under pressure, that shop
was sold off.

9. It is the further case of the tenant
that apart from the demised shop vis-a-vis
Shop No.14, Nanjhai Bazar, that was
purchased by the landlord's elder brother,
Sanjay Agrawal on 11.01.1994, a suit was
instituted against the tenant, Irshad Khan
being S.C.C. Suit No.123 of 1994 for
eviction and decreed on 23.09.1995. Irshad
Khan's revision was dismissed by this
Court and possession of the shop under
reference delivered to Sanjay Agrawal. The
shop thus vacated is lying vacant and
locked for the past three years. Apart from
these properties, the landlord along with his
family lives in a palatial three storeyed
house, bearing No.207, Daru Bhaundela,
Jhansi, which is equipped with all modern
amenities. This house has a number of
portions and has about 20-25 large size
rooms.
In
addition,
there
are
two
verandahs, a store, kitchen and a number of
lavatories and bathrooms.

10. The landlord and his brothers own
a two storeyed market in the Jhansi main
market
area
called
Mitra
Market,
constructed in the year 1990. The shops in
the said market owned by the landlord and
his brothers are let out on rent. The
landlord carries on business under the name
and style of K.B. Jewellers, apart from of
money lending. Apart from the said
business in the family, there are other
business under the name and style of Ram
Sewak
Ramesh
Chandra
Kamaraya
Jewellers
and
M.K.
Jewellers.
The
landlord's family own other firms too, all
engaged in the trade of gold and silver. One
of his family members carries on business
under the name and style of Bulian
Refinery, where silver and gold is purified
and silver coins minted in the factory.

11. The landlord and his brothers own
a building by the name of Naveen Unit
School in Mohalla Nai Basti, Jhansi. All
members of the landlord's family, men and
women are educated and competent, who
stay together cordially. There is no dearth
1620 INDIAN LAW REPORTS ALLAHABAD SERIES
of space with them. There is also a plea to
the effect on behalf of the tenant that the
landlord and his wife have never fought the
landlord's mother who is a simple and
straightforward woman. The landlord's case
that his house at Daru Bhaundela, Jhansi is
a small house with 5-6 rooms and his
family comprise a total of 20 souls, where
the landlord has a solitary room of 10x10
feet for himself rests on incorrect facts. The
landlord and his brother, Ramesh Chandra
and others have got vacated a big shop of
theirs bearing Shop No.164 from one Idrish
and combining with it an adjoining shop,
they have built a shopping complex,
wherein all the brothers own separate
shops.

12. The landlord has purchased
through a registered sale deed in the Sharda
Hills Colony, a newly built house, which
has a number of big rooms, a verandah, a
kitchen and a bathroom. Earlier as well the
landlord and his brothers, Sanjay Agrawal
and Ramesh Chandra had purchased in
the
names
of
their
wives,
Meena
Agrawal, Manju Agrawal and Mamta
Agrawal a valuable plot of land, located
on
the
Jhansi-Gwalior
Road
on
21.05.2008, all of which they are in
possession. The landlord also owns, in
addition to the houses and shops earlier
mentioned, House Nos.212, 213, Daru
Bhaundela, Jhansi, that are big residential
premises. The tenant occupies the upper
floor of Shop No.13, premises Nos.13
and 14 at the rate of Rs.32.50 per month.
In the said shop, the tenant manufactures
steel
almirahs,
boxes,
trunks,
book
shalves, packing cases etc. and also
repairs the same. He stores raw materials.
The demised shop is the only one that the
tenant has, where he and his five sons
work together. This place provides them
their sole source of livelihood.

13. The tenant's house, bearing No.
233, Mukuriana, Jhansi is a house located
in a constructed bylane, where there are no
shops or market. That house of the tenants
has six rooms, wherein he lives along with
39 members of family. In those premises,
he does not fabricate steel almirah nor can
he do that. The demised shop is essential to
support the tenant and his family's source
of livelihood. In the event, it is released, the
tenant would face great hardship. The
tenant's business has garnered goodwill.
The landlord has no need for the demised
shop. In the event, the release application
were refused, the landlord would not suffer
any hardship. The release application
deserves to be rejected.

14. The landlord supported his case
by his own affidavit, bearing paper
No.25A, besides an affidavit of Ramesh
Chandra Agrawal, paper No. 26A and
another affidavit of Sanjay Agrawal, paper
No.27A. The tenant for his evidence put in
his own affidavit, paper No.30A, an
affidavit of Manmohan Srivastava, paper
No.31A and an affidavit of Anis, paper No.
32A. The landlord filed his rejoinder
affidavit, bearing paper No.53A. An
additional affidavit on behalf of the
landlord was filed, being his own, paper
No.69A. The tenant filed an affidavit, paper
No.75A. Two other affidavits were filed on
behalf of the landlord, bearing paper
No.81A and 99A. The tenant filed along
with a list, bearing paper No.33C, fourteen
documents. Through another list, 76C, four
documents were filed. A single document
was filed through list 94C, followed by two
others through list 102C, another seven
through list 108C and a single document
through list 116C.

15. The Prescribed Authority, who
heard the landlord's application for release,
5 All. Mohd. Ishaq Vs. A.D.J. / Spl. Judge (S.C./S.T. Act), Jhansi & Anr.
1621
held against him both on the issues of bona
fide need and comparative hardship. The
landlord's application was rejected by the
Prescribed Authority vide his judgment and
order dated 07.05.2009. The landlord
questioned
the
Prescribed
Authority's
judgment through an appeal under Section
22 of the Act, carried to the District Judge
of Jhansi. The appeal was numbered on the
file of the learned District Judge sitting as
the Appellate Authority under the Act, as
Rent Control Appeal No.6 of 2009. The
landlord's appeal came up for determination
before the Additional District Judge/
Special Judge, SC/ST Act, Jhansi on
22.09.2011. The learned Additional District
Judge reversed the judgment of the
Prescribed Authority, allowed the landlord's
appeal, granting the application for release
and ordering the tenant's eviction.

16. Aggrieved, the tenant has
preferred this writ petition under Article
226 of the Constitution.

17. Heard Mr. Arvind Srivastava,
learned Counsel for the tenant and Mr.
Arvind
Srivastava,
learned
Counsel
appearing for the landlord.

18. During the pendency of the writ
petition, the tenant passed away and his
heirs LRs, who are five in number have
been brought on record as petitioner
Nos.1/1 to 1/5. Therefore, all further
mention of the tenant bears reference to
each of the five heirs of the original tenant,
who have inherited the joint tenancy.

19. The foremost submission on
behalf of the tenant is that the present
release application is not maintainable
because it has been moved within two
months and ten days of rejection of the
earlier release application made on the
same grounds by the landlord. The
submission of the learned Counsel for the
tenant is that the present application is
barred by Rule 18(2) of the Uttar Pradesh
Urban Buildings (Regulation of Letting,
Rent and Eviction) Rules, 1972 (for short,
'the Rules'). It is also submitted that, even
otherwise, the circumstances have not
changed since the rejection of the last
application under Section 21(1)(a) of the
Act, so as to entitle the landlord to maintain
the present application.

20. The short summary of events on
this point canvassed on behalf of the tenant
is that the first release application was
made by the landlord on 15.03.1993,
bearing Case No. 26 of 1993. It was moved
under Section 21(1)(b) of the Act. This
application was rejected vide order dated
09.07.1996. The appeal filed from the said
order was dismissed on 07.07.2000, and a
writ petition preferred challenging the
appellate order was dismissed by this Court
on 14.03.2012. The second application
seeking release on the ground of bona fide
under Section 21(1)(a) of the Act was made
on 19.08.1994, which was numbered on the
file of the Prescribed Authority as Case
No.95 of 1994. This application came to be
dismissed by the Prescribed Authority vide
order dated 29.01.1998. An appeal from
this order was carried to the Appellate
Authority, being Rent Control Appeal No.9
of 1998, which was dismissed vide
judgment and order dated 11.05.2001. A
writ petition was preferred challenging the
appellate
order,
being
Writ
Petition
No.30896 of 2001, which was dismissed
vide order dated 27.04.2010.

21. The learned Counsel for the tenant
reckons the period of presentation of the
present application under Section 21(1)(a)
of the Act from the date of the appellate
1622 INDIAN LAW REPORTS ALLAHABAD SERIES
order, that is to say, 11.05.2001 passed in
the proceedings arising from the release
application, moved in the second instance.
It is on that basis that the learned Counsel
for the tenant submits that the present
application was made within two months
and ten days of rejection of the second
application for release. He, therefore, urges
that the application is clearly barred by the
provisions of sub-Rule (2) of Rule 18 of the
Rules, apart from submitting that there is
no material change in the circumstances
inter se the landlord and the tenant about
their bona fide need and comparative
hardship.

22. The learned Counsel for the
landlord on the other hand says that the
present application is not at all barred
because the period of one year envisaged
under Rule 18(2) of the Rules has to be
reckoned from the date of rejection of the
application by the Prescribed Authority, and
not dismissal of the appeal carried from the
original order. He submits that even
otherwise Rule 18 is directory; not
mandatory. There is, thus, no bar, according
to the learned Counsel for the landlord,
preventing the Authorities in exercising
their jurisdiction under the Act and
entertaining
a
subsequent
release
application. It is also argued that the
circumstances have materially changed, on
account of which the judgment rendered in
the earlier application would not bind
parties about the issues of bona fide need
and comparative hardship.

23. The Appellate Authority has
repelled the tenant's contention on this
score disagreeing with the Prescribed
Authority
and
held
that
a
second
application
would
be
maintainable,
unhindered by Rule 18 of the Rules within
one year of the rejection of the earlier
release application, and not dismissal of the
appeal from the order passed in the earlier
application. The Appellate Authority has
also held in tune with the submissions
advanced on behalf of the landlord that the
provisions of Rule 18 are directory and not
mandatory.

24. Upon hearing learned Counsel for
the parties, this Court finds that the bar
envisaged under Rule 18(2) of the Rules,
even if it were to be strictly enforced, is not
to be reckoned from the date of the
judgment in appeal, but the date of
rejection of the earlier application by the
Prescribed Authority. This principle was
laid down by this Court in Heera Lal v.
IXth Additional District Judge, Kanpur
and others, (2005) 61 ALR 488 (All), also
indicating the reason why the period of one
year has to be reckoned from the date of
rejection of the earlier application by the
Prescribed Authority; not the Appellate
Authority. In Heera Lal (supra), it has been
held:

"5. ...... Secondly, period of one
year will be counted from the decision of
the Prescribed Authority. If appeal filed
against the said decision is dismissed, the
period of one year provided under the
aforesaid Rule will not be counted from the
date of dismissal of appeal. The reason
behind the above Rule is that within a year
position of the need does not substantially
change. However, after one year it may
change. Before the prescribed authority the
position of need as prevailing until final
decision of the release may be brought on
record as of right. However, during
pendency
of
appeal
subsequent
developments cannot be brought on record
as of right. The Appellate Court simply said
that as earlier release application had been
rejected against the respondent No. 3 Babu
5 All. Mohd. Ishaq Vs. A.D.J. / Spl. Judge (S.C./S.T. Act), Jhansi & Anr.
1623
Singh hence it would be deemed that
landlord had no bona fide need. The view
of
the Appellate
Court
was
utterly
erroneous in law."

25. The issue, whether the bar under
Rule 18(2) of the Rules is directory or
mandatory,
fell
for
consideration
in
Ammal Chandra Dutt (supra)Ammal
Chandra Dutt v. Second Additional
District Judge and others, (1989) 1 SCC
1. In Ammal Chandra Dutt (supra), it was
held by their Lordships of the Supreme
Court:

"9. We may now set out the
reasons as to why the prescription in Rule
18(1) should be construed as only directory
and not mandatory. In the first place, the
rule envisages two kinds of situations, one
of them where the second application is
made within an interval of six months from
the date on which final orders were passed
in the previous application and the other
where the second application is made
beyond an interval of six months, which
may even go up to several years, as in this
case where the interval was over five years,
but within six months of the Act coming
into force. Surely, the legislature would not
have intended that the interval factor in the
two sets of situations should be visited with
the same consequences by adopting a rigid
and
inflexible
application
of
the
prescriptive guideline given in Rule 18(1).
The second factor is that even if the
interval factor is the sole criterion for the
application of the formula contained in
Rule 18(1), the legislature could not have
intended that even where drastic changes
had taken place subsequent to the disposal
of the earlier application, the Prescribed
Authority should shut his eyes to the
realities of the situation and blindly and
mechanically apply the formula in Rule
18(1) and reject the second application. To
cite a few examples it may be that after the
disposal of the first application, the
landlord had been rendered houseless due
to the house occupied by him falling down
due to decay or heavy rains or being
destroyed by fire. Could anyone say that
irrespective of the changes that have taken
place, the findings rendered in the previous
application would have the force of
relevancy till the period of six months fixed
under the rule has expired? It is, therefore,
manifest that the rule of presumption
enunciated in Rule 18(1) is only to serve as
a guideline to be followed by the
Prescribed Authority if he finds the
circumstances to remain unchanged and the
finding rendered in the earlier application
to have relevance even with reference to
the facts set out in the second application.
The rule is intended to avoid multiplicity of
proceedings as the very heading given to
the rule would make it clear. It will
therefore be inequitable and unrealistic to
construe Rule 18(1) as containing an
inexorable legal prescription for rejecting a
second
application
filed
within
the
prescribed time limit solely on the basis of
the findings rendered in the earlier
application."

26. It is these decision, which have
been relied upon by the Appellate Authority
to repel the tenant's contentions, and in our
opinion rightly so. The bar under Rule
18(2) of the Rules would not apply in this
case, because the earlier application, that is
to say, the second application preceding the
instant application for release was rejected
by the Prescribed Authority on 29.01.1998,
whereas the present application was moved
on 23.07.2001. Therefore, the instant
application was well beyond the period of
one year from the rejection of the second
application for release by the Prescribed
1624 INDIAN LAW REPORTS ALLAHABAD SERIES
Authority. The contention raised on behalf
of the landlord that the period of one year
under Rule 18(2) has to be reckoned from
the date of the appellate order passed in the
second application for release, that is to
say,
on
11.05.2001,
cannot
be
countenanced. Even otherwise, the Rule
has been held to be directory and would not
work as a bar in the sense understood in
law to affect maintainability.

27. What is of substance is whether
the circumstances of the parties have
changed since the rejection of the earlier
release application. In the opinion of this
Court, like the Appellate Court, they have.
The landlord's daughter has entered the
B.Com. Course, whereas the son reached
his intermediate grade. The landlord on
evidence has also been found to be without
a shop of his own, though he has residential
accommodation to take care of that part of
his need. These circumstances are change
enough to entitle the landlord to renew his
prayer for release of the demised shop, post
rejection of his previous application. The
finding of the Appellate Authority cannot
be faulted on this score at all.

28. It is argued on behalf of the tenant
that there is no bona fide need established
by the landlord, entitling him release of the
demised shop. It is pointed out that in
Paragraph Nos.8 and 9 of the objections/
written statement filed in response to the
release application, it has been pleaded that
the landlord, his brothers and mother are
living jointly. The landlord has recently
purchased a shop, bearing No.98, situate in
Mohalla
Jawahar
Chowk,
Jhansi
on
22.11.2001. He has also purchased a Shop
No.190 on 25.05.2004 in the name of Smt.
Manju Agrawal wife of his brother Sanjay
Agrawal. The said facts are asserted in
Paragraph No.10 of the written statement.

29. It is pointed out on behalf of the
tenant that it was brought to the notice of
the Authorities below that the landlord has
a number of accommodations, to wit, Shop
No.14, Premises No.207, where he is
living, a shopping complex in the name of
Mitra Market, firms, namely, M/s. Ram
Sewak Ramesh Chandra, K.B. Jewellers,
Kamaria Jewellers and M.K. Jewellers. He
also has a residential house purchased
through a sale deed dated 01.08.2008 at the
Sharda
Hills,
Nai
Basti
and
other
properties. It is urged that it was taking into
account the availability of all these
accommodations
that
the
Prescribed
Authority rightly rejected the landlord's
application for release.

30. It is contended on behalf of the
tenant by the learned Counsel that in the
appeal preferred, the landlord did not
challenge these findings recorded by the
Prescribed Authority. It is further argued
that Shop No.190, purchased in the name of
the landlord's brother's wife, Smt. Manju
Agrawal was sold off by the landlord on
24.02.2011. This shop was available to the
landlord for doing business, but he has
chosen not to do so, and instead, sold if off.
This, according to the learned Counsel for
the tenant, is for the reason that he never
needed the aforesaid shop as he is well
settled in business. Likewise, he has no
bona fide need for the demised shop.

31. In addition, it is submitted that the
landlord has purchased a residential house
on 01.08.2008 in the Sharda Hills Colony
out of his own resources garnered from the
business that he does in premises No.164,
Sarrafa Bazar, Jhansi. In this connection, he
has drawn the Court's attention to the sale
deed at Page No.226 of the paper-book.
Again, according to the learned Counsel for
the tenant, the landlord has purchased
5 All. Mohd. Ishaq Vs. A.D.J. / Spl. Judge (S.C./S.T. Act), Jhansi & Anr.
1625
another house in Om Shanti Nagar. To
substantiate the said fact, apart from
referring to the findings of the Authorities
below, the learned Counsel has drawn the
Court's attention to a photostat copy of the
sale deed annexed as Annexure No.19 to
the paper-book. It is urged that on the
question of bona fide need, the affidavits of
Ishaq, Manmohan Srivastava and Anis
Khan, annexed as Annexure Nos.21, 22 and
23 to the writ petition, had not been
considered by the Appellate Authority. It is,
thus, submitted that the Appellate Authority
in recording its finding on the question of
bona
fide
need
had
ignored
from
consideration material evidence on record.

32. It is next submitted that the
Appellate Authority in answering the issue
of bona fide need has also committed an
error apparent on the face of record. It is
submitted
in
substantiation
that
the
Prescribed Authority has recorded findings
to the effect that the landlord's family was
living happily together as a joint family,
and also that the landlord has a number of
accommodations together with his family
available to him, both for residential
purpose and the purpose of doing business.
He does not need the demised shop.
According to the learned Counsel for the
tenant, since this finding recorded by the
Prescribed Authority for the reasons given
by the said Authority has not at all been
considered by the Appellate Authority, the
impugned judgment is vitiated by error
apparent.

33. The learned Counsel for the
landlord, on the other hand, has supported
the findings recorded by the Appellate
Authority and submitted that all the various
accommodations, pointed out by the
tenants to be available to the landlord, have
been considered before holding in favour of
the landlord on the issue of bona fide need.
The landlord's bona fide need has been
accepted for the purpose of business alone.
It is urged that the Appellate Authority has
not
ignored
from
consideration
any
evidence or committed an error apparent,
so as to merit interference by this Court
with a pure finding of fact in the exercise of
jurisdiction under Article 226 of the
Constitution.

34.

This
Court
has
carefully
considered the submissions advanced by
the learned Counsel for parties and perused
the impugned judgment and the record. The
judgment of the Prescribed Authority has
also been looked into.

35. This Court finds that the
landlord's submissions that the Appellate
Authority has ignored from consideration
material evidence or committed an error
apparent in record findings on the issue of
bona fide need are far from sustainable.
The Appellate Authority has considered the
residential accommodation available to the
landlord in House No.207, Daru Bhaundela
and the case of parties about the space
therein, where the landlord resides with his
three other brothers and their families. The
Appellate Authority has not accepted the
landlord's case that the said house has 5-6
rooms nor that of the tenant that it has 2025 big rooms, besides bathrooms and other
facilities. The Appellate Authority has
considered the Amin's report, paper No.85C and returned a finding that this house has
a ground floor, first floor and second floor,
comprising of a total of 10 rooms. The
Appellate Authority has then considered the
number of family members in the landlord's
nuclear family and that of his three
brothers, all of whom are said to live in
House No. 207, Daru Bhaundela as a joint
family.
1626 INDIAN LAW REPORTS ALLAHABAD SERIES

36. It has been held that according to
the ration cards on record, the landlord's
brother, Ramesh Chandra has a family of
seven, the landlord a family of four,
Mahesh Chandra a family of five, Ajay
Kumar a family of four and Sanjay
Agrawal again a family of four. The
Appellate Authority has taken note of the
fact that the landlord's mother has passed
away pending proceedings. The landlord
and his brothers together comprise 25
members.
The
other
residential
accommodations considered are the four
houses, bearing Nos.33, 210, 212 and 213,
Daru Bhaundela, another house bearing
No.22, Nanjhai Bazar and the two houses
purchased at Sharda Hills Colony and Om
Shanti Nagar. The Appellate Authority has
recorded a finding that apart from House
No.207, the landlord has houses located at
Premises Nos.212, 213, Daru Bhaundela
and has also purchased two houses pending
appeal, one at Om Shanti Nagar and the
other at Sharda Hills Colony, Nai Basti.
The former has been noted to have an area
of 162 square meters and the latter an area
54.03
square
meters.
The
Appellate
Authority has also recorded a finding based
on the ration cards of the landlord's family
that his brother Mahesh Chandra lives at
Premises
No.213,
Daru
Bhaundela,
whereas Ajay Kumar resides in Premises
No.33 and Sanjay Kumar in 210. It has
been held that the landlord's brothers live in
House Nos.33, 210, 212, 213, Daru
Bhaundela. The Appellate Authority has
returned a finding that the landlord has no
bona fide need so far as his residential
requirement goes. Here, the Appellate
Authority for its own and very detailed
reasons is in agreement with the Prescribed
Authority.

37. So far as accommodation for
housing
the
landlord's
business
is
concerned, the Appellate Authority has
very meticulously scrutinized all properties
said to be available to the landlord for the
purpose about their title, utility and
suitability. There is mention of a certain
land purchased in the names of Meena
Agrawal, Manju Agrawal and Mamta
Agrawal, wives of the landlord and two of
his brothers, jointly on 21.05.2008. This
land is located on the Gwalior Road. The
Appellate Authority has opined that the
land is agricultural as evident from the
document bearing paper No.95-C. It has no
built up up area and is suitable for
agriculture. The Appellate Authority has
held that ownership of this kind of land is
irrelevant to judge the landlord's need for
the demised shop. The said finding is
beyond exception in our opinion. There is
then reference to a certain Shop No.14,
Nanjhai Bazar, Jhansi abutting the demised
shop, which has been purchased by the
landlord's brother Sanjay Agrawal on
11.01.1994. A suit against against the
sitting tenant in the shop, one Irshad, is
noted to have been instituted, being S.C.C.
Suit No.123 of 1994. This suit was decreed
on 23.09.1995 and a revision from the
decree dismissed. About the aforesaid shop,
it is commented that it belongs to Sanjay
Agrawal; not the landlord.

38. There is then a reference to a
Shop No.190, Bada Bazar, Chaudhariyana,
standing in the name of Manju Agrawal
wife of Sanjay Agrawal, that was purchased
on 25.05.2005 through a sale deed of that
date. This shop too had a tenant by the
name Wasiurrahman, against whom P.A.
Case No.13 of 2005 was instituted, seeking
release.
The
release
application
was
allowed on 16.04.2010. Similarly, Sanjay
Agrawal
purchased
premises
bearing
No.72, Jawahar Chowk, Jhansi and against
the sitting tenant in the said premises
5 All. Mohd. Ishaq Vs. A.D.J. / Spl. Judge (S.C./S.T. Act), Jhansi & Anr.
1627
instituted S.C.C. Suit No.39 of 1992. The
said suit was compromised with the tenant
in revision.

39. It has been remarked that if any of
these shops bearing No.14, Nanjhai Bazar,
Jhansi,
Shop
No.190,
Bada
Bazar,
Chaudhariyana, or Shop No.72, Jawahar
Chowk, Jhansi, have been purchased and
got vacated by Sanjay Agrawal or his wife,
it is of no relevance to the landlord's need
for the demised shop. This is so because
none of these shops belong to the joint
family or the landlord. These belong to the
landlord's brother, Sanjay Agrawal or his
wife. Doing a meticulous analysis of all
properties said to be available, it has been
held that the landlord has no premises
available to him for the purpose of his
business.

40. The Appellate Authority has
recorded findings in meticulous detail, after
analyzing evidence on record about the
availability of business accommodation to
the landlord. In Paragraph Nos.8 and 10 of
the judgment, the Appellate Authority has
recorded the following findings:

"8- जवपक्षी ने सायल के स्वाजमत्व के मकान सं022 नझाई बाजाि झॉसी भी बताया जो जतमंजजला है औि जजसके
प्रथमतल पि 15 दूकानें है कहा, प्रलेख 80 सी के आधाि पि
22 नझाई बाजाि के स्वामी महेशिन्र अग्रवाल एवं अजय
अग्रवाल सायल के भाई है, स्वीकाि जकया जावेगा। न तो यह
संयुक्त परिवाि की सम्पजि है औि न ही यह सायल की है तथा
210 डरु भौंडेला एवं 213 डरु भोंडेला सायल के जपता
िामसेवक के स्वाजमत्व के मकानात है यह प्रलेख 78 व 79 सी
पंिसाला की नकल से स्पष्ट होता है। इन दोनों ही मकानों में
जकिायेदाि क्रमशः िमेशिन्र जतवािी एवं िामदास गुप्ता है जो सायल
के कब्जे में नहीं है तथा भवन सं0-33 डरु भोंडेला कैलाशबाबू,
महेश, काशीप्रसाद एवं अजय के स्वाजमत्व के हैं प्रलेख 77 सी से
स्पष्ट होता है इनमें से कोई जगह सायल के कािोबाि के जलए
उपलब्ध नही है।"

"10...... उपिोक्त जववेिना से मैं इस जनष्कर्श पि
पहुाँिता ह ाँ जक सायल/ जकिायेदाि के पास एक पैजत्रक मकान सं0207 डरु भोंडेला में है उसका स्वयं का मकान ओमशांजतनगि एवं
शािदाजहल्स कालौनी नईबस्ती झॉसी में है जजसे दौिान मुक़दमा
सायल ने खिीदा है। सायल की संयुक्त जहन्दू परिवाि की सम्पजि की
दूकान नं0- 190 बडाबाजाि, 72 जवाहि िौक झॉसी, एवं दूकान
नं0-14 नझाई बाजाि न होकि तनहा संजय अग्रवाल की है सायल
एवं उसके भाइयों का जमत्र माकेट या नवीन यूजनट स्कूल नईबस्ती में
स्वाजमत्व की कोई जगह नही है तथा 164 सिाफा बाजाि झॉसी
तथा 238, 239, 240 सिाफा बाजाि सायल के बडे भाई िमेश
अग्रवाल की है जजससे कोई सिोकाि व वास्ता सायल का नही है इन
दूकानों में सायल का कोई हक व जहस्सा नहीं है सायल के जपता के
नाम मकान नं० 210, 213 डरु भौंडेला है जजसमें कािोबाि के
जलए कोई जगह नहीं है तथा इनमें जकिायेदािान िमेशिन्र जतवािी एवं
िामदास गुप्ता िहते हैं जो खाली जस्थजत में नहीं है। जनमुशजक्त प्राथशनापत्र
के कथन जक जववाजदत दूकान रिलीज होने पि वह इसका जनमाशण
किाकि रिहायश एवं कािोबाि के जलए बनवा लेगा। इसमें से रिहायश
की आवश्यकता सायल की पूणश हो िुकी है। कािोबाि के जलए कोई
जगह न होने से जववाजदत दूकान सायल के कािोबाि के जलए जनमुशक्त
की जाने योग्य है।"

41. There is no such perversity about
the findings of the Appellate Authority on
the question of bona fide need of the
landlord to establish his business as may
impel this Court to interfere with those
findings. The various shops that have been
referred to by the tenant as ones available
to the landlord, either do not belong to the
landlord or are not available. These are not
in the ownership of the joint Hindu family
or the landlord's ownership.

42. So far as the shopping complex in
the Mitra Market or the Naveen Unit
School, Nai Basti is concerned, the finding
of the Appellate Authority is that there is no
such accommodation available either with
the landlord or his brothers. It is a nonexistent accommodation.

43. Now, turning to the finding about
comparative hardship, one factor that the
1628 INDIAN LAW REPORTS ALLAHABAD SERIES
Appellate Authority has taken into account
is the fact that there is no evidence to show
that the tenant has made efforts during the
period of 40 years that he has been in
occupation of the demised shop to search
for alternative accommodation. Indeed,
there is no evidence about it. The
proposition is well settled that in a case
where the tenant does not search for
alternative accommodation, particularly,
after the landlord initiates proceedings for
release against him, the answer to the issue
of comparative hardship invariably ought to
be against the tenant. In this regard,
reference may be made to the decisions in
Sarju
Prasad
v.
VIIIth Additional
District Judge, Faizabad and others,
2007 (2) AWC 1068 (L.B.) and Arvind
Kumar Mishra v. Jitendra Kumar Gupta
and others, 2016 (1) A.R.C. 634.

44. There is again another factor that
has weighed with the Appellate Authority
in deciding the question of comparative
hardship against the tenant. It is the fact
that the tenant has been in occupation of
the demised shop for 40 years on a paltry
rent of Rs.32.50. The Appellate Authority
has placed reliance in this regard in Sheo
Shanker Das v. Special Judge & Ors,
2006 (3) ALJ (NOC) 467 (All).