# Rajesh Kumar Gupta v. Deepak Tandon & Anr

- **Citation:** (2016) 8 ILRA 1219
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-03
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-gupta-v-deepak-tandon-anr-44166
- **Pages:** 6

## Headnote

application to release a portion of House No. 18/15 Hastings Road, Tandon Quarters, Allahabad, under Section
21(1)(a) of the U.P. Act No. 13 of 1972. Before the High Court, the tenant's counsel raised a single legal issue:
a residential building portion cannot legally be released to a landlord for commercial use.

Paragraph 4: Counterarguments by the Landlords
The landlords' Senior Counsel countered that this specific plea was never explicitly argued in the lower courts.
He claimed the tenanted property was mixed-use ("residential-cum-commercial") which exempts it from the
statutory bar. Furthermore, he argued that since the tenant had acquired alternative housing within the city,
the tenant was legally barred from raising any objections against the release application.

Paragraph 5-6: Factual Property Description from the Pleadings
The High Court scrutinized Annexure-5 of the release application, which contained the landlords' own
architectural and textual description of the premises in Hindi. The text explicitly listed the property as
consisting of "one shop, three residential rooms, a courtyard, kitchen, toilet, bathroom, and drawing room."
The Court noted this clearly proves that, except for a single shop unit, the vast majority of the tenanted
property is strictly residential.

Paragraph 7: Acknowledgment of Mixed Tendency Use
In paragraph 5 of their initial application, the landlords acknowledged that after the death of the original
tenant (the petitioner's father), the petitioner continued using the premises both as a shop and for residence.
The Court deduced from this that the single shop room was utilized for business, while the remaining three
rooms, drawing room, and amenities served as the family's home.

Paragraph 8-9: Establishing the Landlords' Commercial Intention
The landlords' pleadings revealed that they reside at a different address (33 Lookerganj) and require the
disputed property solely to expand an existing computer business. Paragraph 20 of their application explicitly
1220 INDIAN LAW REPORTS ALLAHABAD SERIES

stated that the first landlord needed the building to smoothly run his commercial trade. Taking the application
as a whole, the Court established two facts: the landlords sought the eviction of a combined
residential/commercial space, but their established bona fide need was entirely commercial.

Paragraph 10-11: The Statutory Bar in Section 21
The Court analyzed Section 21(1)(a) of the Act, highlighting its mandatory third proviso. The clause explicitly
states that "no application... shall be entertained... in the case of any residential building, for occupation for
business purposes." The Court declared this provision mandatory, creating an absolute legal bar against
releasing residential property for commercial intent.

Paragraph 12-14: Legal Duties of the Court and Lower Court Failures
The High Court ruled that preventing the release of residential space for business use is a pure question of law
that goes to the root of a case's maintainability. Even though the tenant had submitted written arguments and
cited precedent (Husaini Dhobi) on this exact point before the lower appellate court, both lower courts
completely failed to address the statutory bar, focusing only on the bona fide nature of the landlords' need.
Paragraph 15-16: Application of Judicial Precedent
The Court relied on the precedent established in Husaini Dhobi v. IIIrd Additional District Judge, Lucknow
(1986), which confirmed that a landlord is legally prohibited from seeking the release of residential premises
to run a commercial business due to the third proviso of Section 21(1)(a). No contrary judicial view was
presented by the landlords.

Paragraph 17-19: The Alternative Accommodation Trap
The lower courts had completely rejected the tenant's defense because he had acquired a vacant residential
house elsewhere in Allahabad, invoking Explanation (i) of the fourth proviso to Section 21(1

## Text

8 All. Rajesh Kumar Gupta Vs Deepak Tandon & Anr.
1219
(2016) 8 ILRA 1219
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2016

BEFORE

THE HON'BLE PANKAJ MITHAL, J.

Writ A No.- 32311 Of 2014

Rajesh Kumar Gupta ...Petitioner
Versus
Deepak Tandon & Anr. ...Respondents

Counsel for the Petitioner:
Shri Prakash Chandra, Shri Vishal Khandewal

Counsel for the Respondents:
Shri Puneet Agrawal, Shri Arvind Srivastava, Shri P.K. Keshri

Held -
Paragraph 1-3: Context of the Writ Petition
The tenant filed a writ petition challenging concurrent orders from lower courts that allowed the landlords'
application to release a portion of House No. 18/15 Hastings Road, Tandon Quarters, Allahabad, under Section
21(1)(a) of the U.P. Act No. 13 of 1972. Before the High Court, the tenant's counsel raised a single legal issue:
a residential building portion cannot legally be released to a landlord for commercial use.

Paragraph 4: Counterarguments by the Landlords
The landlords' Senior Counsel countered that this specific plea was never explicitly argued in the lower courts.
He claimed the tenanted property was mixed-use ("residential-cum-commercial") which exempts it from the
statutory bar. Furthermore, he argued that since the tenant had acquired alternative housing within the city,
the tenant was legally barred from raising any objections against the release application.

Paragraph 5-6: Factual Property Description from the Pleadings
The High Court scrutinized Annexure-5 of the release application, which contained the landlords' own
architectural and textual description of the premises in Hindi. The text explicitly listed the property as
consisting of "one shop, three residential rooms, a courtyard, kitchen, toilet, bathroom, and drawing room."
The Court noted this clearly proves that, except for a single shop unit, the vast majority of the tenanted
property is strictly residential.

Paragraph 7: Acknowledgment of Mixed Tendency Use
In paragraph 5 of their initial application, the landlords acknowledged that after the death of the original
tenant (the petitioner's father), the petitioner continued using the premises both as a shop and for residence.
The Court deduced from this that the single shop room was utilized for business, while the remaining three
rooms, drawing room, and amenities served as the family's home.

Paragraph 8-9: Establishing the Landlords' Commercial Intention
The landlords' pleadings revealed that they reside at a different address (33 Lookerganj) and require the
disputed property solely to expand an existing computer business. Paragraph 20 of their application explicitly
1220 INDIAN LAW REPORTS ALLAHABAD SERIES

stated that the first landlord needed the building to smoothly run his commercial trade. Taking the application
as a whole, the Court established two facts: the landlords sought the eviction of a combined
residential/commercial space, but their established bona fide need was entirely commercial.

Paragraph 10-11: The Statutory Bar in Section 21
The Court analyzed Section 21(1)(a) of the Act, highlighting its mandatory third proviso. The clause explicitly
states that "no application... shall be entertained... in the case of any residential building, for occupation for
business purposes." The Court declared this provision mandatory, creating an absolute legal bar against
releasing residential property for commercial intent.

Paragraph 12-14: Legal Duties of the Court and Lower Court Failures
The High Court ruled that preventing the release of residential space for business use is a pure question of law
that goes to the root of a case's maintainability. Even though the tenant had submitted written arguments and
cited precedent (Husaini Dhobi) on this exact point before the lower appellate court, both lower courts
completely failed to address the statutory bar, focusing only on the bona fide nature of the landlords' need.
Paragraph 15-16: Application of Judicial Precedent
The Court relied on the precedent established in Husaini Dhobi v. IIIrd Additional District Judge, Lucknow
(1986), which confirmed that a landlord is legally prohibited from seeking the release of residential premises
to run a commercial business due to the third proviso of Section 21(1)(a). No contrary judicial view was
presented by the landlords.

Paragraph 17-19: The Alternative Accommodation Trap
The lower courts had completely rejected the tenant's defense because he had acquired a vacant residential
house elsewhere in Allahabad, invoking Explanation (i) of the fourth proviso to Section 21(1). The High Court
clarified that while this acquisition strips a tenant of their right to object, it does not relieve the court of its
duty to assess the baseline legal maintainability of the landlords' suit. Because the landlords' own pleadings
openly sought a residential area for business use, the application was facially unmaintainable regardless of the
tenant's status.

Paragraph 20-21: Final Orders and Modification of Release
The High Court concluded that the release of the three residential rooms, drawing room, and amenities for
commercial computer operations was completely barred by law. Accordingly, the Court partially allowed the
writ petition, quashing the orders of the Additional District Judge and Prescribed Authority to the extent that
they released the residential spaces. However, the release of the singular shop unit was maintained. The
lower court orders stood modified without any order as to costs.

Case Laws Cited:-

1. Husaini Dhobi Vs. IIIrd Additional District Judge, Lucknow and another, 1986 (2) ARC 251.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. A portion of House No.18/15 Hastings Road, Tandon Quarters, Allahabad is involved in
the dispute.

2. The respondent/landlords (hereinafter referred to as the landlords) applied for release of
the above portion under Section 21(1)(a) of the U.P. Act No.13 of 1972 (in short 'Act'). The said
release application after contest by the tenant has been allowed by the courts below.
8 All. Rajesh Kumar Gupta Vs Deepak Tandon & Anr.
1221
3. Aggrieved by release of the portion in question, the petitioner/tenant (hereinafter referred
to as the tenant) has invoked writ jurisdiction of this Court.

4. Sri Prakash Chandra, learned counsel for the tenant has argued only one point that the
residential portion cannot be released for commercial purposes.

5. Sri Ravikant, learned Senior Counsel assisted by Sri Arvind Srivastava who appears for
the landlords has submitted that no such specific argument was raised by the tenant in the courts
below. The tenanted portion is residential-cum-commercial and, as such, the bar contemplated by
proviso to Section 21 would not apply. The objections of the tenant in opposition to the release
application are not required to be considered as he has acquired an alternative accommodation in
the city itself.

6. The release application filed by the landlords is enclosed with the petition in the form of
Annexure - 5. It at its foot describes the tenanted portion as under:

Þfooj.k Hkou futkbZ

,d nqdku] jgk;'kh rhu dejs vkaxu] jlksbZ ?kj] 'kkSpky;] Lukux`g] Makbax :e gS tks Hkou la0 18@15
gsfLVax jksMA 1@5 U;k; ekxZA VaMu DokVlZ] bykgkckn] ij fLFkr gS] ftldh ekufp= layXu gS rFkk pkSgn~nh fuEu gS%&ß

7. The description of the tenanted portion as given by the landlords themselves in the
release application is one shop, three residential rooms with courtyard, kitchen, toilet, bathroom,
drawing room forming part of house No.18/15 Hastings Road, Tandon Quarters, Allahabad. The
aforesaid description clearly demonstrates that apart from one shop the entire other portion under
tenancy is residential in nature.

8. The release application in paragraph 5 states that previously the father of the tenant late
Kedar Nath Gupta was the tenant whereupon on his death the petitioner tenant is using the house as
a shop and for residential purposes. The averments made in this paragraph also indicates that the
landlords accept that the tenant is using the tenanted portion in part as a shop and for residential
purposes. It by necessary implication means that a one room portion which has been described as
shop is being used as a shop and the remaining three room portion with a courtyard, a kitchen, a
toilet, a bathroom and a drawing room is being used for residential purposes. In other words, except
for one room portion which is being used as a shop and the remaining portion is in use for
residential purposes.

9. The pleadings of the release application further reveal that the case of the landlords is
that they have no other place to do any business except for the portion in dispute. They are living
with their family with Smt. Urmila Tandon in a house 33 Lookerganj, Allahabad. The landlord
No.1 is doing computer business and his establishment is registered with the Labour Department.
He requires the premises in dispute for his bonafide need to expand/start his computer business
which will require a Computer Operator, an Accountant, three Salesman and an Assistant.
1222 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The need as established by the landlords in the release application for the tenanted portion
is only for the business purposes of one of them which is clearly indicative on the complete reading of
the release application, specially paragraph 20 which reads as under:

20- ;g fd vkosnd la0 1 dks viuk O;olk;h dkjksckj djus ds fy, iz'uxr Hkou la0 18@15 gsfLVax
jksMA 1@5 U;k; ekxZA VaMu DokVlZ] bykgkckn] ftlesa foi{kh fdjk;snkj ds :i esa vkckn gS] dh mfpr o ln~Hkkoh
vko';drk gS ftlesa og O;kikj dks leqfpr :i ls pyk ldrk gSAß

11. A complete reading of the release application as filed by the landlords makes two things
very clear. First the release has been sought of a shop and a three room residential portion with a
drawing room, courtyard, kitchen, toilet and bathroom. Second the need for the aforesaid porition is
for commercial purposes.

12. Section 21 of the Act which provides for release of the building under occupation of
tenant on the ground of bonafide need of the landlord by its third proviso lays down that no
application for release shall be entertained in case of any residential building for occupation for
business purposes. The relevant clause of the third proviso to Section 21(1)(a) of the Act is quoted
below:

"Provided also that no application under clase (a) shall be entertained -

(i) .....

(ii) in the case of any residential building, for occupation for business purposes;

(iii) ........"

13. The aforesaid provision is of a mandatory nature and provides that a residential building
cannot be released for business purposes.

14. The question whether a residential building can be released for commercial purposes is a
pure question of law and a duty is cast upon the courts to ensure that a residential portion is not
released for business purpose.

15. The courts below in allowing the release application have not dealt with and considered
the above aspect of the matter which goes to the root of the release application and its maintainability.

16. The written argument filed on behalf of the tenant before the appellate court below
reveals that emphasis was laid upon the above aspect of the matter and a contention was raised that a
residential building cannot be released for commercial purposes in respect of which 1986(2) ARC 251
Husaini Dhobi Vs. IIIrd Additional District Judge, Lucknow and another was cited. However,
despite the above the lower appellate court failed to consider the above argument and record any
finding thereon. Both the courts below allowed the release application holding the need of the
8 All. Rajesh Kumar Gupta Vs Deepak Tandon & Anr.
1223
landlord to be bonafide but without going into the question of releasing a residential portion for the
purposes of business.

17. In Husaini Dhobi (supra) it has been held that the landlord is permitted to use the
residential portion for business purpose and the landlord can not seek release of residential premises
for commercial purpose in view of the bar contained in proviso third (ii) to Section 21(1)(a) of the
Act.

18. No contrary view was placed before me.

19. The courts below in holding the need of the landlord to be bonafide have recorded a
finding that the tenant has acquired a residential house at Bhagwan Ram Mandir Marg/Old Stretchy
Road, Allahabad. In view of the said finding it has been argued that the tenant cannot object to the
release application.

20. Explanation (i) to the fourth proviso to Section 21(1) of the Act stipulates that where the
tenant or any member of his family has built or has otherwise acquired in a vacant state or has got
vacated after acquisition a residential building in the same city, municipality, notified area or town
area, no objection by the tenant against an application under this sub-section shall be entertained. In
other words, it provides that if a tenant of a residential premises has acquired another residential
premises in vacant state he would not be entitle to raise any objection against the release application.

21. The aforesaid provision only debars the tenant from raising objection against the release
application but it does not debars the court from considering the maintainability of the release
application on the pleadings made in the release application itself. Thus, notwithstanding any
objection to the release application by the tenant the release application on the face of it was not
maintainable in so far as it seeks the release of a residential portion for business purposes.

22. In the above circumstances, as the landlords sought release of three rooms residential
porition with a drawing room, courtyard, kitchen, toilet and bathroom for business purposes, the
release application to that effect was barred by clause (ii) to third proviso to Section 21(1) of the Act.

23. Accordingly, the judgments and orders dated 30.5.2014 passed by the Additional District
Judge, Court No.10, Allahabad and dated 10.1.2013 passed by the Prescribed Authority, Allahabad in
so far as they direct for release of the residential portion of the House No.18/15 Hastings Road,
Tandon Quarters, Allahabad for commercial purposes is quashed and the release of the shop alone
which forms part of the tenanted portion is maintained. The judgment and orders of the courts below
stand modified to the extent indicated above.

24. The writ petition is partly allowed as above with no orders as to costs.
----------
1224 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 1224
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.08.2016

BEFORE

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Application U/s 482 No.- 38560 Of 2011

Manisha Ajariya ...Applicant
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Shri Kashif Zaidi

Counsel for the Opposite Parties:
G.A., Ms. Ruchita Jain

Held -
Introduction & Invocation: The applicant approached the High Court under Section 482 of the Criminal
Procedure Code (Cr.P.C.) seeking to quash a chargesheet dated January 24, 2010, pending in the Court of the
Additional Chief Judicial Magistrate (A.C.J.M.), Mahrauli, Lalitpur. The chargesheet alleged offenses under
Sections 498-A, 323, 504, 506 of the Indian Penal Code (IPC) and Sections 3⁄4 of the Dowry Prohibition (D.P.)
Act.

Notice and Counsel's Instructions: The case was taken up as a mentioned matter. Although directed to
inform the opposite party No.2 (the complainant/wife), her counsel stated at the bar that she had received no
further instructions from her client for a long time.

Nature of Dispute & Personal Status: The applicant's counsel submitted that the core matrimonial discord
between the husband and wife had been amicably settled, and they are now living together peacefully. The
applicant is not a family member but merely a business partner of the husband. She was roped into the case
by the wife out of sheer suspicion regarding her relationship with the husband.

Investigation Anomalies: The Investigating Officer (I.O.) explicitly noted in the chargesheet that the
applicant does not fall under the legal definition of a "relative of the husband." Despite this finding, the I.O.
submitted the chargesheet against her, and the Magistrate mechanically took cognizance without considering
this fact.

Acquittal of Main Accused: The husband, mother-in-law, and father-in-law were already acquitted by the trial
court on July 28, 2012, following the compromise. The case against the applicant remained pending solely
because of an interim stay order granted by the High Court back on November 28, 2011.

State's Opposition: The learned Additional Government Advocate (A.G.A.) representing the State opposed
the quashing application but could not produce any facts or evidence to contradict the applicant's submissions.
Legal Analysis of Section 498-A IPC: The Court analyzed Section 498-A IPC, emphasizing that the text strictly