# Ram Kumar Barnwal v. Ram Lakhan and others

- **Citation:** (2008) 3 ILRA 900
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-28
- **Case number:** Civil Misc. Writ Petition No.9701 of 1983
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kumar-barnwal-v-ram-lakhan-and-others-41262
- **Pages:** 4

## Headnote

Sri M.D. Singh Shekhar
Sri T.P. Singh
Sri K.M. Dayal
Sri Shashi Nandan
Sri Atteq Ahmad
Sri R.D. Tiwari
Sri S.P. Pandey
Sri A.K. Mishra
Sri Rahul Sripat
Sri S.K. Mehrotra
Sri Bharat Garg
Sri Sudhir Chandra
S.C.

U.P.
Urban
Building
(Regulation
of
Letting Rent and Eviction) Act 1972Section 21-Release application by land
lord to settled his son on businessshowing his bonafide need-rejected by
the court below on the ground-the son of
land lord has already joined the business
of his father in a tenanted building-heldillegal-tenanted shop of the land lord can
not came in way of consideration of
bonafide need-even the son of land lord
can not be compelled to join the
business of his father-finding of both the
court below on both points patently
erroneous-liable to quash.

Held: Para 14

Accordingly, in my opinion, bona fide
need of landlord was/is fully proved.
Balance of hardship also lies in his
favour. Findings of both the courts below
on
both
the
points
are
patently
erroneous in lay and liable to be
quashed.
Case law discussed:
2007 AIR SCW 3250, 2005 (2) A.R.C. 793,AIR
2003 SC 780

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2008
900
subsequent to his ad hoc appointment by
the Management, because of the interim
order granted by this Court in writ
petition as well as under final judgment of
the Hon'ble Single Judge referred to
above, he has actually worked in the
institution, he is therefore, entitled for
salary for the period of actually working.

17. In the facts of this case we feel
that it would be too harsh to deny the
salary to the petitioner for the services
actually rendered, we therefore, provide
that the appellants shall ensure payment
of salary to the petitioner for the period he
has actually discharged his duties in the
institution under interim order of this
Court passed in writ petition as well as
under final judgment and order of the
Hon'ble Single Judge till date, if not
already paid.

18. This special appeal is allowed
subject to the observations made above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.9701 of 1983

Ram Kumar Barnwal

...Petitioner
Versus
Ram Lakhan and others ...Respondents

Counsel for Petitioner:
Sri S.K. Misra
Sri Somesh Khare
Sri A.K. Gupta
Smt. Komal Khare

Counsel for the Opposite Parties:
Sri M.D. Singh Shekhar
Sri T.P. Singh
Sri K.M. Dayal
Sri Shashi Nandan
Sri Atteq Ahmad
Sri R.D. Tiwari
Sri S.P. Pandey
Sri A.K. Mishra
Sri Rahul Sripat
Sri S.K. Mehrotra
Sri Bharat Garg
Sri Sudhir Chandra
S.C.

U.P.
Urban
Building
(Regulation
of
Letting Rent and Eviction) Act 1972Section 21-Release application by land
lord to settled his son on businessshowing his bonafide need-rejected by
the court below on the ground-the son of
land lord has already joined the business
of his father in a tenanted building-heldillegal-tenanted shop of the land lord can
not came in way of consideration of
bonafide need-even the son of land lord
can not be compelled to join the
business of his father-finding of both the
court below on both points patently
erroneous-liable to quash.

Held: Para 14

Accordingly, in my opinion, bona fide
need of landlord was/is fully proved.
Balance of hardship also lies in his
favour. Findings of both the courts below
on
both
the
points
are
patently
erroneous in lay and liable to be
quashed.
Case law discussed:
2007 AIR SCW 3250, 2005 (2) A.R.C. 793,AIR
2003 SC 780

(Delivered by Hon'ble S.U. Khan, J.)

1. Heard learned counsel for the
parties.

2. This is a landlord's writ petition
arising out of eviction/release proceedings
initiated by him against tenant-respondent
3 All] Ram Kumar Barnwal V. Ram Lakhan and others
901
no. 1 on the ground of bona fide need
under Section 21 of U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act in the form of case no. 2 of 1980.
Property in dispute is a shop rent of which
is Rs.40/- per month. Landlord has died
and
substituted
by
his
legal
representatives.

3. Prescribed Authority/Munsif City,
Azamgarh through judgment and order
dated 26.05.1982 dismissed the release
application. Against the said judgment
and order, landlord-petitioner filed Misc.
Civil
Appeal
No.
171
of
1982.
A.D.J./Special
Judge
(E.C.
Act),
Azamgarh dismissed the appeal through
judgment and order dated 22.04.1983,
hence this writ petition.

4. I dismissed this writ petition on
05.01.2004 without looking into the
merits of the case on the ground that even
if arguments of the learned counsel for
petitioner were accepted, matter would
require remanded as release application
had been dismissed by both the courts
below. However, while dismissing the
writ petition, liberty was granted to the
landlord-petitioner to file fresh release
application. Against judgment and order
dated 05.01.2004, appeal was filed before
Supreme Court (Civil Appeal no.2480 of
2007). Supreme Court allowed the appeal
through
judgment
and
order
dated
14.05.2007 set aside the order of the High
Court and remanded the matter to the
High Court to decide the matter finally.
Supreme
Court
also
directed
that
subsequent
events
shall
also
be
considered
by
the
High
Court,
if
necessary. The judgment of Supreme
Court is reported in 2007 AIR SCW 3250
"Ram
Kumar
Barnwal
v.
Ram
Lakhan."
5. It may be mentioned that even
before the judgment of the Supreme Court
in this case, I had changed my view and
held that even if release application of the
landlord has been dismissed by both the
courts below still in suitable cases High
Court in exercise of writ jurisdiction can
grant final relief to the landlord vide
Mohd. Arif Vs. A.D.J. 2005 (2) A.R.C.
793.

6. Landlord stated in the release
application that he was doing business
from a tenanted shop and he had three
sons whose names were Ashthbhuji,
Sangam Lal and Kameshwar and one of
his sons was doing business from a shop
owned by the landlord. Both the courts
below held that all the three sons were
doing business from the shop owned by
the landlord jointly, hence need was not
bona fide.

7. In the counter affidavit filed on
02.01.2008, it has been stated in Para 7
onward that Kameshwar Prasad, one of
the sons of the landlord has shifted to
Varanasi and is practising there as
Chartered Accountant and has got two
residential buildings in Varanasi (Property
in dispute is situated in Azamagarh). In
Para 9 of the said counter affidavit, it has
been stated that Sangam Lal second son
of landlord-petitioner is doing business of
Kirana
Merchant
(general
merchant)
under the name and style of M/s
Ashthbhuji Prasad Barnwal in his own
shop situated adjacent to the shop in
question and the said shop was in
existence since before the institution of
the release application.

8. Thereafter in Para 15, details of
properties owned by petitioner and his
sons has been given. Under the heading
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
902
'business of petitioner's son (Ashthbhuji)',
it is mentioned that at present he is doing
business of Kirana in the shop adjacent to
the shop in question under the name and
style of M/s Ashthbhuji Prasad Barnwal.

9. A perusal of Para 9 and Para 15 of
the counter affidavit makes it quite clear
that according to the tenant himself there
is only one shop owned by the landlord in
which two of his sons are doing business
i.e. Sangam Lal and Ashthbhuji Prasad.
Supreme Court in the case of Sushila Vs.
IInd Addl. District Judge, Banda, AIR
2003 SC 780 and Mustaquin & R.K.
Govil has held that every adult family
member of the landlord has got right to
start his independent separate business
and no landlord or adult member of the
family of the landlord can be compelled
to participate in the joint business of
family business.

10. Learned counsel for landlordpetitioner has stated that the shop which
was in tenancy occupation of the landlord
was got vacated by its landlord. This fact
is not admitted by the learned counsel for
tenant-respondent. Be that as it may,
Supreme Court in the case of G.K.Devi
vs. Ghanshyma Das, AIR. 2000 S.C.
656
has
held
that
a
tenanted
accommodation in possession of the
landlord
cannot
be
taken
into
consideration while deciding his release
application.

11. In any case, Ashthbhuji and
Sangam Lal are having only one shop,
hence need for one additional shop is
more that proved.

12. As far as comparative hardship
is concerned, landlord asserted and tenant
admitted that he and his sons had got
following additional business:-

1. Atta Chakki

2. Two of his sons had started Cloth and
Kirana business in another shop"

13.

Accordingly,
balance
of
hardship squarely lay in favour of the
landlord and against the tenant. Tenant
did not show that he made any efforts to
search another accommodation after filing
of the release application. This omission
further titled balance of hardship against
the tenant vide B.C. Bhutada vs. G.R.
Mundada (A.I.R. 2003 S.C. 2713).

14. Accordingly, in my opinion,
bona fide need of landlord was/is fully
proved. Balance of hardship also lies in
his favour. Findings of both the courts
below on both the points are patently
erroneous in lay and liable to be quashed.

15. Writ petition is accordingly
allowed. Both the impugned judgment
and
orders
are
set
aside.
Release
application
of
landlord-petitioner
is
allowed.

16. Tenants-respondents are granted
six months time to vacate provided that :-

1. Within one month from today
respondent tenant files an undertaking
before the Prescribed Authority to the
effect that on or before the expiry of
aforesaid period of six months he will
willingly vacate and handover possession
of the property in dispute to the landlordpetitioner.

2. For this period of six months, which
has been granted to the tenant-respondent
3 All] Priti Chauhan V. State of U.P. and others
903
to vacate, he is required to pay Rs.6,000/-
(at the rate of Rs.1000/- per month) as
rent/damages for use and occupation. This
amount shall also be deposited within one
month before the Prescribed Authority
and shall immediately be paid to the
landlord-petitioner.

17. In case of default in compliance
of any of these conditions tenantrespondent shall be evicted through
process of Court after one month and
shall also be liable to pay damages at the
rate of Rs.2000/- per month since after
one month till the date of actual eviction.

18. Similarly, if after filing the
aforesaid undertaking and depositing
Rs.6,000/- the accommodation in dispute
is not vacated on the expiry of six months
then damages for use and occupation shall
be payable at the rate of Rs.2000/- per
month since after six months till actual
eviction. It is needless to add that this
direction is in addition to the right of the
landlord to file contempt petition for
violation of undertaking and execution
application under Section 23 of the Act.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.08.2008

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 42876 of 2008

Priti Chauhan

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.C. Srivastava
Sri Rajendra Jaiswal

Counsel for the Respondents:
Sri J.N. Maurya
S.C.

Constitution
of
India
Art.
226Departmental and Criminal proceedingprayer
to
stay
the
departmental
proceeding so long criminal proceeding
concluded-No complicated question of
law involved-only show cause notice
issued-in departmental proceeding-heldpremature-No interference-at this stage.

Held: Para 6

Moreover, no final order has been passed
in the departmental proceeding and only
a show cause notice has been issued to
the petitioner. Therefore, in my view,
even otherwise, the writ petition is premature.
Case law discussed:
1999 (3) SCC 679, JT 2005 (8) SC 425, JT
2006 (1) SC 444, AIR 2007 SC 199, 2008 (4)
SCC 1, JT 2008 (4) SC 577, JT 2007 (2) SC
620

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The short grievance raised by the
petitioner in this writ petition is that in
respect
to
the
charges,
on
which
departmental enquiry is being conducted
against him, a criminal proceeding has
also been initiated and, therefore, so long
as the criminal proceeding is going on, the
authorities cannot proceed with the
departmental enquiry and, therefore, a
writ of mandamus has been sought for
staying the pending departmental enquiry.
Reliance is placed on the Apex Court's
decision in Capt. M. Paul Anthony Vs.
Bharat Gold Mines Ltd. & another
1999 (3) SCC 679.

2. In my view, the submission is
thoroughly
misconceived.
The Apex
Court, in the Capt. M. Paul (supra) has