# Sardar Kulwant Singh v. The VIth Additional District Judge, Saharanpur and others

- **Citation:** (2007) 2 ILRA 456
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-12-21
- **Case number:** Civil Misc. Writ Petition No.27313 of 1993
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sardar-kulwant-singh-v-the-vith-additional-district-judge-saharanpur-and-others-40902
- **Pages:** 5

## Headnote

Sri Atul Dayal
Sri S.N. Misra
2 All] Sardar Kulwant Singh V. VIth A.D.J., Saharanpur and others
457
U.P.
Urban
Building
(Regulation
of
letting and Rent) Control Act-1972Section
21
(1)-Release
applicationbonafide need to establish chamber of
the
son
of
land
lord-an
practicing
advocate in taxation side-allowed by the
prescribed
authority-rejected
by
the
Appellate court-held- appellate court
clearly misconstrued the meaning and
import
of
bonafide
need-utterly
erroneous in law.

Held: Para 11

Accordingly I hold that the finding of the
appellate court that the need of the
landlord was not bonafide is utterly
erroneous in law. The facts found by the
Appellate
Court
clearly
proved
the
bonafide need.
Case law discussed:
AIR 2006 SC-780
AIR 2003 SC-532
AIR 1977 SC-59
AIR 2000 SC-656
AIR 1998 SC-2696
AIR 1998 SC-3146
AIR 2002 SC-108
AIR 2003 2713
AIR 2002 SC-200

## Text

456 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
provided under Section 274 of the Act did
not arise and the suit as such cannot be
said to be barred by Section 41 of the
Specific Relief Act.

5. On perusal of the judgements of
the courts below and other documents
filed with the paper-book it is found that
the specific plea in the defence taken by
the respondent Cantonment Board is that
the service of the notice under Section
185 of the Act was done upon the wife of
the appellant and in an acknowledgement
to that she appended her signature on the
counter foil. This plea has been duly
substantiated and proved in the statement
of the defendant's witness who filed his
affidavit and specifically stated that the
notice was delivered at the residence to
the plaintiff's wife, who was also residing
and occupying the same building having
unauthorised construction. This witness of
the defendant has also been subjected to
through
cross-examination
by
the
plaintiff's counsel, but no challenge at any
place, even in the least, has been made
regarding the fact deposed by the witness
relating to the service of the notice upon
plaintiff's wife. There is no suggestion to
this witness from the side of the plaintiff
that the notice was not taken at the
address given and that it was not handedover to plaintiff's wife. Sub-section (2) of
Section 254 of the Cantonment Act
provides that the notice can be also served
by giving or tendering the same upon one
of the occupiers also if there are more
than one. In the allegedly unauthorised
constructions erected by the plaintiff his
wife is also one of the occupiers and if the
notice has been served upon her that
notice can rightly be treated as sufficient
service and no legal objection in respect
thereto is entertainable at all. Therefore,
the findings recorded by the court below
with regard to the service of the notice as
sufficient, are wholly justified and do not
require any interference in this second
appeal.

6. As regards the bar of suit under
Section 41 (h) of the Specific Relief Act,
it is quite obvious that since service of
notice upon the appellant is held to be
sufficient, he had every opportunity and
occasion to file appeal as provided under
Section 274 of the Cantonment Act and if
he has not availed of the said remedy
before coming to the Civil Court for the
relief of permanent injunction, the suit
cannot be held to be competent for the
grant of such relief. The findings recorded
in this regard by the courts below are also
wholly justified.

7. In the result, the appeal appears to
be without substance and merits and it
accordingly fails and is hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2006

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

Civil Misc. Writ Petition No.27313 of 1993

Sardar Kulwant Singh
...Petitioner
Versus
The
VIth
Additional
District
Judge,
Saharanpur and others ...Respondents

Counsel for the Petitioner:
Sri R.S.D. Misra
Sri Ravi Kiran Jain

Counsel for the Respondents:
Sri Atul Dayal
Sri S.N. Misra
2 All] Sardar Kulwant Singh V. VIth A.D.J., Saharanpur and others
457
U.P.
Urban
Building
(Regulation
of
letting and Rent) Control Act-1972Section
21
(1)-Release
applicationbonafide need to establish chamber of
the
son
of
land
lord-an
practicing
advocate in taxation side-allowed by the
prescribed
authority-rejected
by
the
Appellate court-held- appellate court
clearly misconstrued the meaning and
import
of
bonafide
need-utterly
erroneous in law.

Held: Para 11

Accordingly I hold that the finding of the
appellate court that the need of the
landlord was not bonafide is utterly
erroneous in law. The facts found by the
Appellate
Court
clearly
proved
the
bonafide need.
Case law discussed:
AIR 2006 SC-780
AIR 2003 SC-532
AIR 1977 SC-59
AIR 2000 SC-656
AIR 1998 SC-2696
AIR 1998 SC-3146
AIR 2002 SC-108
AIR 2003 2713
AIR 2002 SC-200

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

1. Heard learned Counsel for the
parties.

2. This is landlord's writ petition
arising out of eviction/release proceeding
initiated by him against tenant-respondent
no.2 District Cooperative Development
Federation Limited, Saharanpur on the
ground of bonafide need under section 21
of U.P. Act No. 13 of 1972 in the form of
P.A.
Case
No.
59
of
1980.
Accommodation in dispute is a shop rent
of which is Rs.100/- per month. In the
release application the need set up was for
establishing the chamber of landlord's
son, who was practicing on taxation aside.
The shop is situate at Railway Road,
Saharanpur. On the backside of the shop
in dispute, at a short distance therefrom
house of landlord is situate which is stated
to be quite big. However, according to the
learned counsel for the landlord the
passage from the main road i.e. Railway
Road to the landlord's house is narrow
and congested. Tenant has got another
building in its tenancy occupation on the
same road i.e. Railway Road on which
accommodation in dispute is situate.
However, according to the tenant the
other building is situate on first or second
floor and is used as residence by its
employees. Tenant further asserted that in
the accommodation in dispute it was
having its retail out let. Prescribed
Authority/IInd
Additional
Munsif,
Saharanpur
allowed
the
release
application on 1.1.1990. Against the said
order tenant respondent no. 2 filed R.C.
Appeal No. 919 of 1990. VI A.D.J.
Saharanpur through judgment and order
dated 6.5.1993 allowed the appeal and set
aside
the
order
of
the
Prescribed
Authority dated 1.1.1990. This writ
petition is directed against the aforesaid
judgment of the Appellate Court.

3. Earlier also release application on
different grounds had been filed in the
year 1977 which was rejected and appeal
against the said order was also dismissed.

4. The tenant mainly pleaded that
landlord had several businesses in which
he could accommodate his son and further
he had several other properties to fulfill
his alleged need. Initially tenant also
denied that landlord's son was practicing
as advocate at taxation side. However,
later on the said stand was given up by the
tenant.
458 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
5. Supreme Court in Sushila
vs.A.D.J. (A.I.R. 2006 S.C. 780) and A.
Kumar Vs. Mushtaqeem (A.I.R. 2003
S.C. 532) has held that no landlord or any
adult member of his family can be
compelled
to
participate
in
family
business and every adult member of the
landlord's
family
particularly
male
members have got right to establish
independent business. Absolutely no fault
can be found if the son of a businessman
opts to practice as an Advocate.

6. In respect of other properties the
explanation of the landlord was that
firstly, they were not in his exclusive
ownership possession and he was only cosharer in the said properties and secondly,
the said properties were being used for
other businesses by the landlord.

7. It was vehemently argued on
behalf of the tenant that shop, which was
vacated by Milap Machines was available
to the landlord to establish the Chamber
of his advocate son. In this regard much
reliance was placed upon an affidavit of
real brother of the landlord filed in
another release case, filed by him against
his tenant Mayer Machinery Mart, copy
of which affidavit has been annexed as
Annexure '11' to the counter affidavit. In
the said affidavit it was stated that the
shop in which Milap Machinery Mart was
being run, had fallen into the share of
Kulwant Singh, petitioner in the instant
writ petition and one Shrimati Gurmeet
Kaur, and it was in their possession.
According to the landlord the said shop
was being used for business purpose. In
para 27 of the writ petition it was clearly
stated
that
the
business
of
Milap
Machinery Mart had come to an end but
another business had been started in the
said shop. In para 38 of the counter
affidavit, the said assertion was not
denied. The only thing which was stated
was that the said property was in actual
occupation of the petitioner as all the
partners had left the business and the
premises was in exclusive possession of
the petitioner.

8. A landlord can not be compelled
to curtail his business in order to
accommodate his son so that tenant may
not be disturbed.

As far as the residential house of the
landlord is concerned, the passage leading
from the main road to the said house was
stated to be narrow and crowded.
Moreover, the office/chamber of an
advocate if situated on a main road is
certainly
of
great
advantage
in
comparison to office in a narrow lane not
having proper access. One may like it or
not but the fact is that profession of
advocacy has also become commercial of
late, particularly on taxation side.

9. The main point on which the
Appellate Court reversed the judgment of
the Prescribed Authority and found the
need of the landlord's son satisfied is that
the said son was having his office in a
small room of 7 feet x 9 feet at another
place. According to the landlord the said
office was on licence and according to the
tenant it was on rent. Appellate Court
accepted the case of the tenant. An
alternative accommodation available to
landlord either as a licensee or as a tenant
is no ground to reject the release
application vide Mrs. M.R. Kshirsagar
vs. M/S Traders and Agencies (A.I.R.
1997 S.C. 59) and G.K. Devi vs.
Ghanshyam Das (A.I.R. 2000 S.C. 656).
Moreover, a room of 7 feet can not be
said to be sufficient for advocates
2 All] Sardar Kulwant Singh V. VIth A.D.J., Saharanpur and others
459
chamber. The fact that the son of the
landlord was having his chamber in
another's
accommodation
either
as
licensee or as tenant fully proved that the
need for establishing chamber was quite
bonafide and landlord was not having any
suitable accommodation for the said
purpose. It is important to note that tenant
himself asserted with great force that the
son of the landlord was having his
chamber in another accommodation of
which he was tenant. This clearly
amounted to admission of the facts that
landlord's son was actually practising as
an advocate and was not having any
accommodation of his own to establish
Chamber and the chamber was being run
in a very small accommodation.

10. The Supreme Court in V.
Radhakrishnan
vs.
S.N.L.Mudaliar
(A.I.R. 1998 S.C. 2696) has held that if
the release application is filed for the need
of the son, then the property in occupation
and use of the land lord is not relevant
and can not be taken in to consideration.
Similarly in A.G. Nambiar vs. K.
Raghavan (A.I.R. 1998 S.C. 3146 ) it has
been held that the other alternative
accommodation
available
with
the
landlord which is not suitable for the
business proposed to be established by the
landlord is not relevant and can not be
taken in to consideration.

In
Chandrika
Prasad
(Dead)
through L.Rs. and others vs. U.K.
Verma and others (A.I.R. 2002 S.C.
108) the Supreme Court has held that a
less suitable accommodation available to
the landlord is no ground to reject the
release application in respect of tenanted
accommodation which is more suitable. In
the said case the landlord had sought
release of the tenanted commercial
accommodation, which was situate at
main road for setting up the clinic of his
doctor son in-law. The tenant pointed out
that the father of the doctor was having a
vacant accommodation in which clinic.
On the same principle landlord can not be
compelled to establish the chamber of his
advocate son in the residential house
which is away from the main road and
connected with narrow congested passage
with the main road.

11. Accordingly I hold that the
finding of the appellate court that the need
of the landlord was not bonafide is utterly
erroneous in law. The facts found by the
Appellate Court clearly proved the
bonafide need. The Appellate Court
completely
mis-construed
the
true
meaning and import of bonafide need.
The Supreme Court in Shenoy's case
reported in Siddalingama vs. M. Shenoy
(A.I.R. 2001 S.C. 2896) has held that the
Rent Control Acts are basically meant for
the benefit of the tenant and provision of
release on the ground of bonafide need is
the only provision which treats the
landlord with some sympathy.

12. As far the question of
comparative hardship is concerned, tenant
himself pleaded that its business was of
quite a large scale. It could, therefore,
purchase
or
take
on
rent
other
accommodation. Tenant did not even
make any effort in the direction. Nothing
was brought on record in that regard by
the tenant. The Supreme Court in
B.C.Butada vs. G.R.Mundada (A.I.R.
2003 S.C.2713) has held that after filing
of release application it is utmost essential
for the tenant to make efforts either to
purchase
or
take
on
rent
other
accommodation otherwise question of
460 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
hardship maybe decided against the
tenant.

13. The Appellate Court has given a
very strange finding in this regard.
Appellate Court held that for 'the
landlord,
getting
possession
of
the
property in dispute was merely a matter of
convenience, while the tenant actually
needed the same. Tenant is having a very
good
business
for
several
decades.
Landlord's son has got no proper
accommodation
for
establishing
his
Chamber.
The
balance
of
hardship
therefore tilts heavily in favour of the
landlord.

14. The Supreme Court in G.C.
Kapoor vs. N.K. Bhasin (A.I.R. 2002
S.C, 200) reversed the concurrent findings
of all the three courts i.e. the Prescribed
Authority, Appellate Court/District Judge
and the High Court on the question of
bonafide need and comparative hardship
and out rightly allowed the release
application, of the landlord holding that
the findings of all the three courts below
were erroneous in law.

15. Accordingly writ petition is
allowed. Judgment and order passed by
the Appellate Court is set aside and
judgment and order passed by the
Prescribed Authority is restored.

Tenant respondent is granted six
months time to vacate provided that:

Within one month from today it files
an undertaking before, the Prescribed
Authority to the effect that on or before
the expiry of period of six months it will
willingly vacate and handover possession
of the accommodation in dispute to the
petitioner-landlord.
(ii) For this period of six months
which has been granted to the tenant to
vacate it is required to pay Rs.12,000/- (at
the rate of Rs.2000/-per month) as
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
petitioner-landlord.

In case of default in compliance wit~
either
of
these
conditions,
tenant
respondent shall be evicted after one
month through process of Court.

16. It is further directed· that in case
undertaking is not filed or Rs.12000/- are
not deposited within one month then
tenant respondent shall be liable to pay
damages at the rate of Rs.3000/- per
month since after one month till the date
of actual vacation.

17. Similarly, if after filing the
aforesaid undertaking and depositing
Rs.l2,000/- the accommodation in dispute
is not vacated after six months then
damages for use and occupation shall be
payable at the rate of Rs.3000/- per month
since after six months till actual vacation.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2006

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No.40429 of 1998

Munendra Pal Singh Chauhan ...Petitioner
Versus
The
Chairman
and
Managing
Director(C.M.D.), U.P. Rajya Vidyut Utpadan
Nigam Ltd. & others ...Respondents