# Naveen Chand Sharma v. Ramu Babu

- **Citation:** (2022) 1 ILRA 711
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-05
- **Case number:** Writ A No. 60998 of 2010
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naveen-chand-sharma-v-ramu-babu-48052
- **Pages:** 11

## Headnote

A. Civil Law - The U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 21(1)(b) - Experience in
a particular business is not a pre-condition
under the statute nor is there any principle
requiring a landlord to prove his experience in
the particular business, which he desires to
establish in the premises that he seeks to be
released. All that he is required to prove is his
need, which should be bona fide. The landlord
has a right to earn his livelihood by
attempting any business permissible by
law, even if he does not have any
experience with it. Thus, this Court finds that
the finding recorded by the Appellate Court on
the question of bona fide need based on the
landlord's lack of experience with the business
of a grocer or a general merchant, ex facie
proceeds on an irrelevant consideration. (Para
20 & 22)
Writ Petition Allowed. (E-10)

List of Cases cited:
712 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

1 All. Naveen Chand Sharma Vs. Ramu Babu
711
found to be in accordance with the relevant
Service rules, whereas, in this case, the
petitioner's appointment, though labelled as
temporary and in its turn, uninterrupted, is
not found to be one made in accordance
with the Service Rules.

16. Learned Counsel for the petitioner
further relied on the decision of the Division
Bench in State of U.P. v. Bhanu Pratap
Sharma5. In the said decision also, it was
held that it is not the State-appellant's case
that the respondent was not appointed in
accordance with the provisions of the
Service Rules. Here, it is a case where the
petitioner has not been able to show that he
was appointed at any time before his
regularisation
in
accordance with the
Service Rules, though he was appointed
against a sanctioned post on a temporary
basis. The appointment, nevertheless, was
dehors the rules. Thus, the decision in State
of Uttar Pradesh v. Kamlesh Babu Gaur
(supra) would also be of no help to the
petitioner. The rights of the petitioner judged
under the shadow of Section 2 and 3 of the
Act cannot be regarded as ones entitling him
to qualifying service. The reason is that the
petitioner's retention in service, though
dubbed as temporary, was not made in
accordance with the relevant Service Rules.
The appointment between 07.05.1987 and
13.01.2006, until he was regularised in
service, was one dehors the Rules. Post
regularisation, the petitioner has admittedly
not completed 10 years of qualifying service
to entitle him to pension, gratuity and other
post-retiral benefits that he seeks. As such,
the petitioner is not entitled to relief.

17. In the result, the writ petition fails
and stands dismissed.

18. There shall be no order as to
costs.
----------
(2022)01ILR A711
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2022

BEFORE

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

Writ A No. 60998 of 2010

Naveen Chand Sharma ...Petitioner
Versus
Ramu Babu ...Respondent

Counsel for the Petitioner:
Sri Rahul Sahai, Sri Aditya Singh Parihar

Counsel for the Respondents
Sri B.P. Verma, Sri Bhanu Prakash Verma

A. Civil Law - The U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 21(1)(b) - Experience in
a particular business is not a pre-condition
under the statute nor is there any principle
requiring a landlord to prove his experience in
the particular business, which he desires to
establish in the premises that he seeks to be
released. All that he is required to prove is his
need, which should be bona fide. The landlord
has a right to earn his livelihood by
attempting any business permissible by
law, even if he does not have any
experience with it. Thus, this Court finds that
the finding recorded by the Appellate Court on
the question of bona fide need based on the
landlord's lack of experience with the business
of a grocer or a general merchant, ex facie
proceeds on an irrelevant consideration. (Para
20 & 22)
Writ Petition Allowed. (E-10)

List of Cases cited:
712 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Mohinder Prasad Jain Vs Manohar Lal Jain
(2006) 2 SCC 724

2. Ram Babu Agarwal Vs Jay Kishan Das (2010)
1 SCC 164

3. Munni Lal Gupta Vs VIIth A.D.&S.J. & ors.
1997 (1) AWC 530

4. Kaushal Kumar Gupta Vs Bishun Prasad &
Ors. 2006 (1) ARC 73

5. Prakash Chandra Vs Ritesh Bhargawa 2020
(9) ADJ 81
(Delivered by Hon'ble J.J. Munir, J.)

1. This is a landlord's writ petition
assailing an order passed by the Additional
District Judge, Court No.2, Mathura dated
16.08.2010, passed in P.A. Appeal No.19
of 2018, partly allowing the tenant's appeal
under Section 22 of U.P. Act No. XIII of
1972.
By
the
order
impugned,
the
Additional District Judge, sitting as the
Appellate Authority under the Act last
mentioned, has set aside the order of the
Prescribed Authority dated 04.08.2008,
under Section 21(1)(a), but upheld the part,
by which release has been granted under
Section 21(1)(b) of the Act, subject to the
tenant's right of re-entry.

2. The demised premises here is a 200
year-old shop, wherein Ram Babu, the sole
original respondent to this petition, was a
tenant since the year 1962. He was in
occupation
of
the
shop
situate
at
Govardhan Tehsil, Mathura at a monthly
rent of Rs.30/-. The shop was part of a
larger property owned by the family of the
sole petitioner, Naveen Chanda Sharma.
Naveen Chanda Sharma received to his
exclusive share the shop last mentioned in a
partition brought about through Suit No.34
of 1988, Arvind Kumar vs. Naveen Chanda
Sharma and others. Besides the aforesaid
shop, the landlord also received in partition
one
room
and
another
residential
accommodation. The shop under reference
shall hereinafter be referred to as the
'demised shop'. The landlord moved a
composite application before the Prescribed
Authority, Mathura under Section 21(1)(a)
and (b) of the U.P. Act No. XIII of 1972
(for short, 'the Act'), seeking release of the
demised shop on the ground of his bona
fide need to set up business of a general
merchant/ grocer, besides asking for release
on ground that the demised shop was so
dilapidated that it required demolition and
new construction, which would then be
utilised by the landlord to establish his
proposed business of a general merchant.
The application aforesaid was instituted in
the month of November, 2002 and
numbered on the file of the Prescribed
Authority, Mathura as P.A. Case No.50 of
2002.

3. The bona fide need set up by the
landlord was that he bona fide needed the
demised shop to earn his livelihood. It was
alleged that the landlord was an electrician
and used to undertake jobs connected to the
trade outside Govardhan However, he
suffered a fracture to his foot, in
consequence of which he had to give up his
trade. He now stayed at Govardhan. He
further said that he has no other shop to
establish his business. In the circumstances,
the landlord claimed that he is much
troubled mentally, besides facing financial
hardship. He requires the demised shop to
establish his business. In addition, it was
pleaded that the demised shop is in a
dilapidated condition with its eastern and
western walls completely gone and the
northern and southern walls delicately
holding. The roof has also fallen down. The
structure is more than 200 year-old and is
not fit for use by any person.
1 All. Naveen Chand Sharma Vs. Ramu Babu
713

4. It was pleaded that the landlord had
sufficient funds with him, which he would
employ in getting a new shop constructed
after demolishing the standing structure. It
was also pleaded that the tenant-respondent
would not suffer much hardship by
comparison to the landlord, in case he were
asked to vacate the shop, because he does
not do any business there. He is holding on
to the shop because it is occupied by him
on a meager rent. One son of the tenant by
the name Kedar is engaged in in the trade
of tailoring and works as a tailor. He has no
need for the said ship. The landlord has a
family, comprising his wife, a son and a
daughter to support. It was pleaded further
that the landlord asked the tenant to vacate
the demised shop a number of times over,
but the tenant-respondent did not oblige,
because he wants to extort money for the
purpose. The tenant-respondent refused to
vacate finally in the month of November,
2002, which led the landlord to institute
these proceedings.

5. The tenant filed a written statement
denying the landlord's allegations, except
the fact that he was a tenant in the said
shop. It was pleaded that the landlord has
no bona fide need for the demised shop,
which he desires to get vacated, so that he
can sell it of for a good price. It was also
alleged that the tenant would suffer much
on the score of comparative hardship
because he had no other place to establish
or run his business that he does in the
demised shop. He had no other source of
income. It was also pleaded in the written
statement that the landlord-petitioner is a
powerful and rich man and had several
other shops in the same market-place at
Govardhan, where the demised shop is
located. He sold off those shops at a good
price. The tenant pleaded that he is filing
copies of the sale deeds executed by the
landlord relating to other shops that he
owned. The case regarding the demised
shop being dilapidated was also traversed.
It is pleaded that the demised shop, though
old, like many old constructions, was in a
safe and sound condition. It had no signs of
giving way. It was also pleaded that the
tenant carries on his business of a
blacksmith since a long period of time. He
has acquired a reputation in his trade. There
are many customers, who come over to the
tenant for jobs related to the trade,
particularly, the fabrication of hand tools. It
was specifically pleaded that the landlordpetitioner had sufficient space available to
him to establish his business, but on
23.08.1999 he sold off two shops to one
Pradeep Kumar Verma and another Mahesh
Kumar Verma. If he had to establish a shop
to earn his livelihood, he would not have
sold off those shops.

6. The Prescribed Authority framed four
issues for determination, that read (translated into
English from Hindi):

"1. Whether the applicant/ petitioner
bona fide requires the disputed property?

2. Whether the disputed property is in a
dilapidated condition and requires to be reconstructed per necessity?

3. Whether the applicant/ petitioner has
complied with the requirements of Rule 17 of the
Rules framed under U.P. Act No. XIII of 1972?

4. In whose favour does comparative
hardship lie?"

7. The petitioner-landlord filed his
affidavit bearing Paper No.50-ग in support
714 INDIAN LAW REPORTS ALLAHABAD SERIES
of the application, specifying his need
further in Paragraph Nos.8 and 9 of the
affidavit to the effect that he required the
demised shop bona fide for the purpose of
establishing a general merchant-cum-gift
shop, after demolition and re-construction.
Apart from the said fact, the demised shop
was dilapidated with the eastern and
western
boundaries
non-existent.
The
northern and southern boundaries were
testified to be in a precarious state. It was
further deposed that on 03.03.2005, the
Nagar Panchayat had served a notice
asking the landlord to demolish and
reconstruct the shop as it was in such a
dilapidated state that it could endanger
human life.

8. The case about the shop being
dilapidated that required demolition and
reconstruction need not be dwelt upon
further because that is a case which both
the Authorities below have accepted and
granted release under Section 21(1)(b) of
the Act. The issue is primarily about
release of the demised shop under
Section 21(1)(a) of the Act, which has
been
granted
by
the
Prescribed
Authority, but set aside on appeal. There
are affidavits by the landlord and the
tenant in support of their respective
cases, besides those of their witnesses,
to which allusion would be made,
wherever necessary.

9. Parties have exchanged affidavits.
This petition was heard finally by consent
of parties and judgment reserved.

10. Heard Mr. Aditya Singh Parihar,
learned Counsel holding brief of Mr.
Rahul Sahai, learned Counsel for the
petitioner and Mr. B.P. Verma, learned
Counsel
appearing
on
behalf
of
respondent nos. 1/1 and 1/2.

11. There is no challenge laid to the
order of release passed by the Appellate
Authority under Section 21(1)(b) of the Act
on behalf of the tenant. The landlord assails
the order of the Appellate Authority to the
extent that the Prescribed Authority's order
granting release under Section 21(1)(a) has
been set aside.

12. It is submitted by the learned
Counsel for the landlord that the Appellate
Authority has taken into consideration
irrelevant facts and evidence that have no
bearing on the bona fide need of the
landlord. Elaborating on his submission, it
is said that the Appellate Authority has
looked into facts and evidence about the
sale of two shops, earlier made by the
landlord in favour of Pradeep Kumar
Verma and Mahesh Kumar Verma, to hold
that the landlord has no bona fide need. It is
argued that the sale of the two shops was
effected in the year 1999 whereas the
release application was moved in the year
2002. It was, therefore, not at all relevant
evidence to consider whether the landlord
bona fide required the demised shop. It has
also been submitted that the Appellate
Authority has recorded a perverse finding
that the landlord could not prove that he
had any experience to carry on business
that he proposed to set up in the new shop,
after the demised shop was demolished and
constructed
afresh.
Learned
Counsel
emphasizes that the settled position of the
law is that a landlord need not require
experience in the business that he seeks to
commence, in order to satisfy his bona fide
need for his livelihood.

13. The approach of the Appellate
Authority has been also castigated as
manifestly illegal and flawed on ground
that the learned Judge has remarked that the
landlord has failed to establish the fact that
1 All. Naveen Chand Sharma Vs. Ramu Babu
715
he sustained a fracture to his limb, and on
that basis, drawn adverse inference against
the case of bona fide need urged by the
landlord. It is argued that there was
sufficient medical and other evidence to
prove that the landlord had sustained a
fracture, which was not rebutted by the
tenant leading evidence to the contrary.

14. It is also urged that the
Appellate Authority has given misplaced
weightage to the provisions of Rule
16(2) of the Rules framed under the Act,
in answering the issue of comparative
hardship. It is pointed out that the tenant
had not adduced any evidence to
establish his good will. Learned Counsel
says that because the tenant has a
business running in the demised shop
since long, would not itself disentitle the
landlord to relief. It is also urged that the
fact that the tenant has not made efforts
to search out alternative accommodation
pending proceedings and earlier, would
be a circumstance that would heavily
weigh against the tenant while judging
comparative hardship.

15. Contrary-wise, Mr. B.P Verma,
learned Counsel for the tenant submits
that the original tenant, Ram Babu is
now dead and respondent nos.1/1, Nabli,
who is Ram Babu's widow is 60 years
old. The tenant's son, Kedar, respondent
no.1/2 is 40 years old. It is argued that
except the avocation of a blacksmith,
that is carried on in the demised shop,
the family of the deceased Ram Babu
have no other source of livelihood. The
findings
recorded
by
the
learned
Additional District Judge on question of
bona fide need have been supported by
the learned Counsel for the tenant. He
has urged that the case of bona fide
need set up by the landlord that he
required the shop to earn his livelihood,
where the landlord would set up a
general merchant's shop or grocery has
been rightly discarded by the Appellate
Authority. It is argued by the learned
Counsel that the landlord's need was not
genuine or bona fide as he did not
possess
any
experience
of
doing
business of a grocer or general merchant.
It is also argued that the landlord had
sold
out
two
adjacent
shops
on
23.08.1999,
which
would
ex
facie
demonstrate that he was not in need of
any accommodation to set up business in
order to earn his livelihood. It is also
argued that there is material on record
that on the rear side of the demised shop,
there is ample vacant land belonging to
the
landlord,
where
he
could
conveniently
construct
a
shop
for
himself. It is next submitted that the
landlord had purchased a plot of land on
30.03.2003 admeasuring 334.40 square
metres, situate at Mauza Bangar, Tehsil
and
District
Mathura
through
a
registered sale deed in the name of Nisha
Sharma, his wife. It is also urged that the
landlord has not brought on record any
evidence about the fact that he ever
sustained a fracture to his lower limb or
that he has experience of undertaking the
trade of electrician, on the edifice of
which the case of bona fide need in the
changed circumstances is now built. In
view
of
the
aforesaid
submissions
founded on whatever pleadings and
evidence figures on the record, the learned
Counsel for the tenant submits that the
Appellate Authority has committed no
error in not accepting the case of bona fide
need urged on behalf of the landlord.
716 INDIAN LAW REPORTS ALLAHABAD SERIES

16. On the issue of comparative
hardship, learned Counsel for the tenant has
elaborately addressed the Court. It is
submitted that the tenancy is in existence
since the year 1962 and the sole source of
livelihood available to the tenant. It is
submitted that the Appellate Authority has
rightly
taken
into
consideration
the
mandate of Rule 16(2)(a) of the Rules,
framed under the Act to conclude that the
long subsisting tenancy tips the scales on
the issue of comparative hardship in favour
of the tenant. It is emphasized that the
landlord has existing land on the rear side
of the demised shop and had two shops that
he sold off. It is submitted that the finding
regarding comparative hardship is based on
the evidence available, about which there is
no illegality. It is, particularly, argued that
the Appellate Authority is the last Court of
fact and its opinion on the issue of bona
fide need as well as comparative hardship
that is based on relevant evidence cannot be
interfered with by this Court in exercise of
powers under Article 226 or for that matter,
under Article 227 of the Constitution.

17. This Court has considered the
rival submissions of parties, perused the
impugned judgment as well as the order of
the Prescribed Authority and the record.

18. The Appellate Authority has
remarked that in the release application, the
landlord has not said what kind of business
he wishes to establish in the demised shop,
that he would demolish and reconstruct. It
has further been remarked that it has not
been pleaded or proved by the landlord that
he has experience to undertake any kind of
trade or business, or the one that he intends
to establish in the demised shop. It has,
particularly, been remarked that in the
affidavit 50ग, the landlord has said that he
intends to establish the business of a
general store in the demised shop, but no
evidence has been adduced to show that the
landlord has the requisite experience of
establishing or handling that business. The
Prescribed Authority had accepted the
landlord's bona fide need and the case that
the landlord intends to establish a general
store or grocer's shop after the demised
shop
is
vacated,
demolished
and
reconstructed.

19. To the understanding of this
Court, the findings of the Appellate
Authority are hairsplitting and destructive
of the purpose of Section 21(1)(a) of the
Act. The provision for release is one that is
designed to secure the landlord's interest by
freeing his accommodation of the tenancy,
if he bona fide requires it. The term 'bona
fide need' cannot be confounded for a dire
or desperate need. The Appellate Court has
opined that the landlord's case about a
fracture to his lower limbs, that disabled
him from undertaking the job of an
electrician he used to do earlier outside
Govardhan is not believable for want of
evidence. The Appellate Authority has not
believed that case because a fracture to one
of the limbs, seemingly is a short lived
disability, which would not prevent the
landlord from carrying on his trade. This
approach of the Appellate Authority cannot
be countenanced. If the landlord desires to
establish a general merchant's shop or a
grocery in a premises owned by him in
order to earn his livelihood, he is within his
rights to give up the trade of an electrician
and pursue the business of a grocer. That is
the freedom which the landlord has and he
cannot be asked to restrict his choice for a
livelihood to his former trade.

20. So far as the experience to do
business of a general merchant or grocer is
concerned, the absence of evidence about that
1 All. Naveen Chand Sharma Vs. Ramu Babu
717
experience is a factor which the Appellate
Authority has taken into consideration in
manifest error. Experience in a particular
business is not a pre-condition under the
statute nor is there any principle requiring a
landlord to prove his experience in the
particular business, which he desires to
establish in the premises that he seeks to be
released. All that he is required to prove is his
need, which should be bona fide. The
landlord has a right to earn his livelihood by
attempting any business permissible by law,
even if he does not have any experience with
it. In this connection, reference may be made
to the decision of the Supreme Court in
Mohinder Prasad Jain v. Manohar Lal
Jain, (2006) 2 SCC 724. The question arose
in the context of release of a shop on the
ground of bona fide need urged by the
landlord to establish a wholesale business in
Ayurvedic medicines. The case arose under
the Haryana Urban (Control of Rent and
Eviction) Act, 1973, where the provisions
about the issue of bona fide need are
substantially the same as those under the Act.
In that context, upon the tenant objecting to
the ground set up by the landlord for release
on basis that he did not have any experience
in the relevant business, it was held in the
Mohinder Prasad Jain:

"11. .......... The submission of the
learned counsel for the appellant to the
effect that before initiating the proceedings,
the respondent was required to show that he
had experience in running the business in
Ayurvedic medicines, has to be stated to be
rejected. There is no law which provides for
such a precondition. It may be so where a
licence is required for running a business, a
statute may prescribe certain qualifications
or preconditions without fulfilment whereof
the landlord may not be able to start a
business, but for running a wholesale
business in Ayurvedic medicines, no
qualification is prescribed. Experience in the
business is not a precondition under any
statute. Even no experience therefor may be
necessary. ........"

21. Similarly, in Ram Babu Agarwal
v. Jay Kishan Das, (2010) 1 SCC 164, the
Supreme Court, while deciding the issue of
bona fide need in the context of Madhya
Pradesh Accommodation Control Act, 1961,
held:

"7. We are of the opinion that a
person can start a new business even if he has
no experience in the new business. That does
not mean that his claim for starting the new
business must be rejected on the ground that
it is a false claim. Many people start new
businesses even if they do not have
experience in the new business, and
sometimes they are successful in the new
business also. Hence, we are of the opinion
that the High Court should have gone deeper
into the question of bona fide need and not
rejected it only on the ground that Giriraj has
no experience in footwear business."

22. In view of the aforesaid position
of the law, in the opinion of this Court, the
finding
recorded
by
the
Appellate
Authority, on the question of bona fide
need based on the landlord's lack of
experience with the business of a grocer or
a general merchant, ex facie proceeds on an
irrelevant consideration. The finding is,
therefore, manifestly illegal.

23. The other facet on which the
Appellate Authority has premised its
finding about the absence of bona fide need
is the fact that the landlord sold off two
shops, adjacent to the demised shop, in
718 INDIAN LAW REPORTS ALLAHABAD SERIES
favour of Pradeep Kumar Verma and
Mahesh Kumar Verma. For one, this
finding ignores from consideration the very
relevant fact that the sale of the two shops
was a transaction that was done in the year
1999, whereas the release application was
made in the year 2002 for an emergent
bona fide need. The landlord cannot be
held to account for the disposition of a
property
that
he
made
three
years
antecedent in point of time to making the
application.

24. The other crucial point that the
Appellate Authority has critically missed is
the finding that the Prescribed Authority
backed by evidence referred to therein has
recorded in his order, which says that the
two sale deeds had to be executed by the
landlord in constraining circumstances in
favour of Pradeep Kumar Verma and
Mahesh Kumar Verma. It has been held by
the Prescribed Authority that the two
tenants were rich-men and had fought the
landlord and his father. Both the father and
the son had been beaten up by the tenants.
The landlord had made a complaint to the
Police, but they did not take any action.
The landlord had a threat to his life and
property. It was in those circumstances that
the property was sold at a lower price to the
tenants. It has also been remarked by the
Prescribed Authority that the landlord had
made a release application in the year 1984
against the tenants, which was rejected.
The Prescribed Authority has noticed the
order rejecting the release application as
well as the police complaint. It has then
been remarked by the Prescribed Authority
that compelled by the rejection of his
efforts to secure release of those shops,
adjacent to the demised shop, the landlord
was compelled into selling the shops to the
tenants. This crucial finding of the
Prescribed Authority and the material in
support thereof has gone unnoticed by the
Appellate Authority. He has not dealt with
those findings or reversed the same; let
alone for a good reason assigned.

25. This Court is of opinion that the
finding of the Prescribed Authority has not
been demonstrated before this Court also to
be bereft of evidence or otherwise illegal.
Since the aforesaid finding has not been
reversed by the Appellate Authority, and on
the basis of relevant material is well
founded, it must be held to govern the
rights of parties. Even otherwise, the said
finding is inevitable to be drawn from the
evidence on record and the Appellate
Authority has committed a manifest error
in ignoring it. In view of the aforesaid
error, that is manifest, it has to be held for
the added reason, indicated that the
Appellate Authority, has gone manifestly
wrong in holding that the landlord had no
bona fide need to seek release of the
demised shop, because he had sold two
adjacent shops to the men named, Pradeep
Kumar Verma and Mahesh Kumar Verma.

26. In the circumstances, this Court is
of opinion that the findings recorded by the
Appellate Authority that the landlord has
not been able to establish his bona fide
need is manifestly illegal and flawed. To
the contrary, the finding on the point by the
Prescribed Authority is unassailable and
deserves to be upheld.

27. So far as the issue of comparative
hardship is concerned, the Appellate
Authority has held in favour of the tenant
falling back upon the provisions of Rule
26(2) of the Rules, framed under the Act.
The Appellate Authority has depended on
the said Rule to opine that the length of the
tenancy is a factor that cannot be ignored.
The Appellate Authority has held that the
1 All. Naveen Chand Sharma Vs. Ramu Babu
719
tenancy here being one dating back to the
year 1962, there was feeble justification to
grant release. This Court must remark at
once that the Appellate Authority has
interpreted the provisions of Rule 16(2)
going by its understanding on the first
principles. That is a good way to interpret a
statute provided it is not pronounced upon
by authority. Surprisingly, the Appellate
Authority, who has rendered the decision
impugned, as late as the year 2010, has not
referred to the several authorities that were
by then holding field interpreting the Rule.
One principle that has come to stay in
interpreting Rule 16(2) or judging the issue
of comparative hardship in the context of
an application for release under Section
21(1)(a) of the Act, is the pre-dominent
importance of the efforts made by the
tenant
to
search
for
alternative
accommodation, pending proceedings for
release, or even before that. The words in
clause (a) of sub-Rule (2) of Rule 16
framed under the Act, attaching importance
to the length of the tenancy, have also
fallen for consideration, with the judicial
opinion being that the Rule cannot be
interpreted in a manner so as to constitute a
tenant of very long duration into a virtual
landlord or owner. In this connection,
reference may be made to the decision of
this Court in Munni Lal Gupta v. Vllth
Addl. District and Sessions Judge and
Ors., 1997 (1) AWC 530. In Munni Lal
Gupta (supra), it was held:

"4. It admits of no doubt that
according to Clause (a), Sub-rule (2) of
Rule 16, greater the period since when the
tenant has been carrying on his venture in
the building, less the Justification for
allowing the application but at the same
time, having regard to over-all facts and
circumstances of the case, I am pursuaded
to the view that the findings recorded by
the Authorities under the Act in relation to
bona fide requirements of the landlord
cannot be assailed and whittled down
merely because the Petitioner had been
carrying on his business in the shop in
question since the year 1977. It is explicitly
postulated in Clause (b) Sub-rule (2) of
Rule 16 that where the tenant has available
with him suitable accommodation to which
he can shift his business without the perils
of substantial loss, there shall be greater
justification for allowing the application.
The expression "available with him" in this
Sub-rule does not necessarily mean actual
physical availability. A suitable alternative
accommodation
which
may
become
available on an effort being made in that
direction is also in the comprehension of
the expression and in the facts and
circumstances of the case, it has been held
that the Petitioner was wanting in earnest
efforts in looking for suitable alternative
accommodation, notwithstanding the fact
that the litigation between the parties had
protracted to considerable stretches. In
Rajendra Kumar Gupta v. Gopal Kishan
and Ors., AIR 1995 All 82, it has been held
by Sudhir Narain, J., and I concur with the
view taken therein in that "one of the
principles for considering comparative
hardships of the parties is to find out as to
whether the tenant had made a sincere
effort
to
find
out
alternative
accommodation and had placed materials
before the authorities to come to their
conclusions that he made such an effort."
The fact that earlier applications for
release, met the fate of rejection some 10
years ago, could not be projected backward
to operate as an obstacle In the way of the
release application being allowed as with
the passage of time, the situation has
undergone
considerable
change.
720 INDIAN LAW REPORTS ALLAHABAD SERIES
Indubitably, Landlord Sanjai Gupta did his
M.A.
after
rejection
of
the
earlier
applications and his failure to secure
employment for himself, lends cogency to
his moving the present application."

28. Again in Kaushal Kumar Gupta
v. Bishun Prasad and Ors., 2006 (1) ARC
73 it was held:

"6. The finding of the trial Court
that the landlord could ask his son Ram
Prakash to assist him in his business of
repairing utensils and stove rather fantastic.
It has been held by the Supreme Court in
Susheela v. A.D.J., 2003 (1) ARC 256, that
landlord and every adult member of his
family is entitled to have separate business.
The other ground taken by the Prescribed
Authority was that tenant was doing his
business from the shop in dispute since
1935 hence there was no justification to
evict him. Mere long possession of tenant
is no ground to reject the release
application when bonafide need is clearly
established. In this regard also reference
may be made to the aforesaid authority the
Supreme Court in the case of Shushila
(supra)." (Emphasis by Court)

29. In a very recent decision in
Prakash Chandra v. Ritesh Bhargawa,
2020 (9) ADJ 81, it was held:

"53. So far as comparative
hardship is concerned, it is undisputed fact
that the petitioner has never attempted to
search alternative space for shifting his
business and law is very well settled on this
point. The Apex Court as well as this Court
has repeatedly held that it is necessarily
required on the part of tenant to make full
endeavour
to
search
alternative
accommodation to prove his comparative
hardship after receiving copy of release
application. In the matter of Rajasthan State
Road Transport Corporation (supra), the
Court has clearly held that it is required on
the part of tenant to make effort for
searching
alternative
accommodation.
Again in the matter of Salim Khan (supra),
this Court, relying upon the judgments of
the Apex Court as well as this Court, was
of the view that it is required on the part of
petitioner to search accommodation after
filing the release application and in the
present case there is no dispute that the
petitioner had never made any effort to
search alternative accommodation. Not
only this, the Court has also considered the
Rule 16 of the Rules, 1972 and considering
the another judgment of Ganga Devi
(supra), Court has taken the view that Rule
16 of Rules, 1972 would not come in the
rescue of petitioner, in case, petitionertenant has not made any effort to search
another accommodation. Here in the
present case, there is no dispute on the
point that petitioner has not made any effort
to search alternative accommodation.

54. In the matter of Sarju Prasad
(supra), this Court has again taken the same
view and held that in case effort was not
made for alternative accommodation, this
would be sufficient to tilt the balance of
comparative hardship against the tenant.
This view was again repeated by this Court
in the case of Bachchu Lal (supra) and held
that to prove the comparative hardship, it is
necessarily required to make effort to
search alternative accommodation, which is
absolutely missing in the present case.

......"

30. In this case, there is no material to
show or a finding recorded by the
Appellate Authority that the tenant has
made any efforts to search for alternative
accommodation. Rather, the report of the
1 All. Khemraj Smarak Rashtriya Vidyapeeth Vs. State of U.P. & Ors.
721
Amin Commissioner shows that during
inspection he noticed the tenant sitting with
a few tools of his trade, but the furnace had
not been fired. This would not go to show
that the original tenant was utilizing the
demised premises for carrying on his trade
of a blacksmith. A blacksmith's trade in the
absence
of
a
working
furnace
is
unimaginable. The description of the tenant
sitting in his shop, though this Court does
not intend to record any finding about it,
leaves an impression of doubt about the
case of the tenant doing business of a
blacksmith.

31. Now, about the surviving tenants,
or the landlord's son and the widow, there is
no material brought on record to show that
they are also engaged in the trade of
blacksmith. Apparently, the tenant has not
discharged his burden on the question of
comparative hardship, which again for a
principle is required to be proved by the
tenant once the landlord establishes his case
of bona finde need. It must also be remarked
that the Prescribed Authority has held on the
question of comparative hardship clearly in
favour of the tenant for good reasons
assigned, including the tenant's failure to
look for alternative accommodation. That
finding of the Prescribed Authority is again
unassailable, which the Appellate Authority
has disturbed on manifestly illegal premises.

32. In the result, this petition succeeds
and is allowed. The impugned order passed
by
the
Appellate
Authority
dated
16.08.2010, to the extent that it rejects the
landlord's application under Section 21(1)(a)
of the Act, is set aside and that of the
Prescribed Authority dated 04.08.2008
restored. There shall be no order as to costs.
----------
(2022)01ILR A721
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.01.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ C No. 4156 of 2017

Khemraj Smarak Rashtritya Vidyapeeth
 ...Petitioner
Versus
State Of U.P. & Ors. ....Respondents

Counsel for the Petitioner:
Rakesh Kumar Srivastava, Kartiket Dubey,
Vinod Kumar Pandey

Counsel for the Respondents:
C.S.C., Akhilesh Kalra, Alqa Samreen,
Apoorva Tewari, Atul Kumar Dwivedi, Faiz
Ali Khan, Puneet Chandra, Shailendra Kr.
Singh, Siddharth Vikram Asthana, Surendra
Lal, Virendra Pd Srivastava

A. Society Registration Act, 1860 - Section
25 (1) - Amended provision made by the
UP Legislature - Proviso to Section 4 (1) -
Election dispute - Reference before the
Prescribed Authority, when called for -
Power of Deputy Registrar considered -
Held, if any objection is filed by Ex
members and they raise the dispute of the
election, it cannot be said that the Deputy
Registrar cannot decide such dispute and
he is bound to refer the dispute to the
Prescribed
Authority.
The
Deputy
Registrar in every case cannot be forced
to refer the dispute to the Prescribed
Authority - Section 25 (1) provides for
settlement of dispute in summary manner
and it does not all together oust the
authority of the Deputy Registrar to
accept the list of members. If such
interpretation is accepted, then the power
conferred on the Deputy Registrar by the
proviso to Sub Section (1) of Section 4 will
become redundant and otiose. (Para 93)