# Shyam Chandra & Ors v. District Judge Sultanpur & Ors

- **Citation:** (2024) 7 ILRA 1462
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-11
- **Case number:** Writ A No. 1000097 of 2008
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-chandra-ors-v-district-judge-sultanpur-ors-52206
- **Pages:** 9

## Headnote

Law
-
Bonafide
requirement - U.P. Urban Buildings
(Regulation
of
Letting,
Rent
and
Eviction) Act, 1972 - Section 21(1)(a)
- Neither the tenant nor the court
could direct the landlord. It is the
choice of the landlord to choose the
place for business which is more
suitable for him. (Para 16)

Using the premises purchased during the
pendency of the case as a godown will not
give any right to the tenants to dictate the
landlord on which property they should use
as a godown. The godown is required
where the shop is running. The petitioners
just to avoid an adverse effect on their
business
as
under
compelling
circumstances i.e. long pendency of the
case, made an alternative arrangement.
(Para 16)

B. In order to prove bona-fide need, a
landlord does not require to establish dire
or compelling need for a premises in order
to establish his business and it is the
choice of the landlord which would be
paramount in such circumstances. (Para
19)

Subsequent
event/developments
are
not
affecting the ground taken in the release
application preferred by the petitioners as in the
release application for personal bonafide need,
the ground taken was that now the petitioner
no. 2 has become major and got married and
requires shop as through the same shop there is
ingress and outgress of the house and the
petitioners are short of space for keeping the
stock of the goods. During this long period of
litigation, such requirement has not changed.
The business is running in the same shop, the
entry of the house is from the same shop and
with the passage of time, the business would
have been increased and there is more
requirement of godown for keeping the stock.
The petitioner no. 1 is married having children
thus, the family has expanded, so none of the
circumstances have changed by subsequent
developments as discussed above hence, in the
present case, the rights of the parties stand
crystallized on the date of the institution of the
suit. (Para 21)

The appellate court has erred in deciding the appeal
by taking a new ground/plea i.e. the petitioners had
not disclosed the nature of the business which they
are running in the shop in how much space and
which type of goods they are storing for which the
godown is required. Such questions were never
raised nor were in dispute. In the facts &
circumstances as on the record, the appellate court
mislead itself in entering into such questions foreign
to the merits of the case. (Para 23)

Writ petition allowed. (E-4)

Precedent followed:

## Text

1462 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 7 ILRA 1462
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.07.2024
BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ A No. 1000097 of 2008

Shyam Chandra & Ors. ...Petitioners
Versus
District Judge Sultanpur & Ors.
 ...Respondents

Counsel for the Petitioners:
Satya Prakash, Ashish Verma, Kumar
Jaikrit, M.P. Yadav, Rajeiu Kr. Tripathi, Ram
Kushal Tiwari, Sanjiv Srivastava, Shrikant
Mishra

Counsel for the Respondents:
C.S.C., Dinesh Kumar, Mohammad Aslam
Khan, Shrikant Mishra

A.
Tenancy
Law
-
Bonafide
requirement - U.P. Urban Buildings
(Regulation
of
Letting,
Rent
and
Eviction) Act, 1972 - Section 21(1)(a)
- Neither the tenant nor the court
could direct the landlord. It is the
choice of the landlord to choose the
place for business which is more
suitable for him. (Para 16)

Using the premises purchased during the
pendency of the case as a godown will not
give any right to the tenants to dictate the
landlord on which property they should use
as a godown. The godown is required
where the shop is running. The petitioners
just to avoid an adverse effect on their
business
as
under
compelling
circumstances i.e. long pendency of the
case, made an alternative arrangement.
(Para 16)

B. In order to prove bona-fide need, a
landlord does not require to establish dire
or compelling need for a premises in order
to establish his business and it is the
choice of the landlord which would be
paramount in such circumstances. (Para
19)

Subsequent
event/developments
are
not
affecting the ground taken in the release
application preferred by the petitioners as in the
release application for personal bonafide need,
the ground taken was that now the petitioner
no. 2 has become major and got married and
requires shop as through the same shop there is
ingress and outgress of the house and the
petitioners are short of space for keeping the
stock of the goods. During this long period of
litigation, such requirement has not changed.
The business is running in the same shop, the
entry of the house is from the same shop and
with the passage of time, the business would
have been increased and there is more
requirement of godown for keeping the stock.
The petitioner no. 1 is married having children
thus, the family has expanded, so none of the
circumstances have changed by subsequent
developments as discussed above hence, in the
present case, the rights of the parties stand
crystallized on the date of the institution of the
suit. (Para 21)

The appellate court has erred in deciding the appeal
by taking a new ground/plea i.e. the petitioners had
not disclosed the nature of the business which they
are running in the shop in how much space and
which type of goods they are storing for which the
godown is required. Such questions were never
raised nor were in dispute. In the facts &
circumstances as on the record, the appellate court
mislead itself in entering into such questions foreign
to the merits of the case. (Para 23)

Writ petition allowed. (E-4)

Precedent followed:

1. Nidhi Vs Ram Kripal Sharma (dad through
Legal Representatives), (2017) Supreme Court
Cases 640 (Para 7)

2. Smt. Bibi Begum Vs Dr. Awadhesh Narain &
ors., 2008 SCC Online All 1069; (2009) 75 ALR
277 (Para 8)

3. Dharmendra Singh Sonkar Vs Additional
District and Sessions Judge, 2016 SCC Online All
7 All. Shyam Chandra & Ors. Vs. District Judge Sultanpur & Ors.
1463
3003; (2016) 115 ALR 739; (2016) 3 All LJ 23
(Para 8)

4. Rishi Kumar Govil Vs Maqsoodan & ors.,
(2007) 4 SCC 465 (Para 9)

5. Raghunath G. Panhale (Dead) by LRs Vs
Chaganlal Sundarji and Co., (1999) 8 SCC 1
(Para 12)

The present writ petition assails judgment
and order dated 30.04.2008, passed in
Rent Appeal No. 01 of 2007 and also the
judgment and order dated 13.02.2007
passed in P.A. Case No. 249 of 1997 by the
Court of Prescribed Authority/Additional
Chief Judicial Magistrate, Sultanpur; with
a further prayer to direct respondent no.
3/private
respondent
to
vacate
and
handover the peaceful possession of
tenanted portion.

(Delivered by Hon'ble Manish Kumar, J.)

1. The present writ petition has been
preferred for setting aside the impugned
judgment and order dated 30.04.2008
passed in Rent Appeal No. 01 of 2007 in re
Shyam Chandra and another versus Ram
Gopal and also the judgment and order
dated 13.02.2007 passed in P.A. Case No.
249 of 1997 by the Court of Prescribed
Authority/Additional
Chief
Judicial
Magistrate, Court no. 17, Sultanpur; with a
further prayer to direct respondent no.
3/private
respondent
to
vacate
and
handover the peaceful possession of
tenanted portion.

2. During the pendency of the present
writ petition, the petitioner no. 2 has died
and her legal heirs/representatives have
been substituted as petitioner no. 2/1 and
2/2 as per the order dated 24.02.2011.

3. Learned counsel for petitioner has
submitted that the respondent no. 3/private
respondent is the tenant in the shop of
which the petitioner is the landlord. The
respondent no. 3 is a tenant since the time
of father of petitioner no. 1.

4. It is further submitted that an
application
was
preferred
by
the
petitioners/landlords,
under
Section
21(1)(a) of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 (hereinafter referred to as U.P.
Act No. 13 of 1972) for evicting the tenants
i.e. respondent no. 3 from the disputed shop
and to release the same in favour of the
petitioners as the petitioner no. 1, who is
married and having children and the ingress
and outgress of the house of the petitioner
is also through the same shop. There is also
no space for storing the stock which was
lying in the same.

5. It is further submitted that the
respondent no. 3 had filed a written
statement mentioning therein that need
shown
by
the
petitioners
in
their
application of release under Section 21 (1)
(a) is not bona-fide and genuine as the
petitioners have purchased two houses
separately during the pendency of the
release application and using one premises
of the house as a godown. It is further
stated in the written statement that another
tenant Dhulai Ram had vacated the shop
during the pendency of the case and the
same has been joined by the petitioners in
his shop so, there is no requirement for
shop.

6. It is further submitted that the
Prescribed Authority/Additional C.J.M. had
rejected the application of the petitioners
on the ground that the petitioners have a
basement which can be used as a godown
ignoring completely that the respondent no.
3 in its written statement had not come with
a case that the petitioners are in possession
1464 INDIAN LAW REPORTS ALLAHABAD SERIES
of the basement which can be used as a
godown and in absence of any evidence,
the finding has been given.

7. It is further submitted that the
subsequent development would not affect
the right of the petitioners regarding bonafide personal need as mentioned in the
application preferred for release of the
property in their favour and in support of
his submissions learned counsel for the
petitioner has relied upon the judgment of
Hon'ble Supreme Court in the case of Nidhi
versus Ram Kripal Sharma (dead through
Legal Representatives) reported in (2017)
5 Supreme Court Cases 640, wherein it has
been held that the subsequent development
will not affect the petitioners as the rights
of the parties has been crystalized.

8. It is further submitted that the
respondent had never ever made any effort
for
searching
for
any
alternative
accommodation after filing of the release
application by the petitioners so the
comparative hardship is in favour of the
petitioners. In support of his submission,
learned counsel for the petitioners has
relied upon the judgment in the case of
Smt. Bibi Begum versus Dr. Awadhesh
Narain and others reported in 2008 SCC
Online All 1069: (2009) 75 ALR 277 and
Dharmendra
Singh
Sonkar
versus
Additional District and Sessions Judge,
reported in 2016 SCC Online All 3003;
(2016) 115 ALR 739: (2016) 3 All LJ 23.

9. It is further submitted that the
landlord
is
the
best
judge
of
his
requirement and the court and the tenant
has no concern to dictate the landlord as to
how and in what manner he should live. In
support of his submissions, learned counsel
for the petitioners have relied upon the
judgment of Hon'ble Supreme Court in the
case of Rishi Kumar Govil versus
Maqsoodan and others, reported in (2007)
4 SCC 465.

10. It is further submitted that the
prescribed authority, on the basis of
presumption that the petitioners are having
basement in their possession which they
can use as a godown, has rejected the
release application, ignoring completely
that it was not the case pleaded by the
tenant/respondent
in
their
written
statement, nor any evidence to that effect
was adduced. The appellate court though
on page-5 in its judgment had noted the
said submission but, the said question was
neither discussed nor any finding has been
recorded on the same.

11. It is further submitted that the
supplementary affidavit has been filed
enclosing therein that the respondent is
digging the soil form the basement and
transporting the same by a tractor due to
which there is an imminent threat to the
house of the petitioners.

12. It is further submitted that the
landlord is to prove the bona-fide need but
does not require to establish dire or
compelling need for the premises and in
support of his submissions, learned counsel
for the petitioners relied upon the judgment
in the case of Raghunath G. Panhale
(Dead) by LRs v. Chaganlal Sundarji and
Co., reported in(1999) 8 SCC 1.

13. On the other hand, Shri Mohd.
Aslam Khan, learned Advocate appearing
for the respondent no. 3 has submitted that
the petitioners have a basement available
with them in which they can store their
goods/material for which the release
application has been preferred by the
petitioners. He further submitted that the
7 All. Shyam Chandra & Ors. Vs. District Judge Sultanpur & Ors.
1465
said fact is also mentioned in the impugned
order and has said that the impugned order
has been passed on the basis of the fact that
the petitioners are having residential and
commercial accommodation which they are
using as a godown and apart from that in
the said two storey house in which the
respondent no. 3 is the tenant, the basement
is also available which could be used as a
godown to fullfil their personal need of
storage as alleged in the release application.
It is further submitted that another tenant
Dhulai Ram, during the pendency of the
case, had vacated the shop which has been
joined by the petitioner in his shop.

14. After hearing learned counsel for
the parties and going through the record of
the case, the issue which is to be
adjudicated in the present case is that the
subsequent developments as mentioned
above would affect the rights of the
petitioners for eviction of the tenant i.e.
respondent no. 3 and the plea which was
neither taken nor evidence was lead by the
private respondent/respondent no. 3 before
the Prescribed Authority regarding the
possession
of
the
basement
by
the
petitioners could be a ground for rejecting
the application of release preferred by the
petitioners.

15. The application preferred by the
petitioners under Section 21(1)(a) was
mainly on the ground that now petitioner
no. 2 is married and having children and
needed the shop in the occupation of the
respondent no. 3 for his personal need and
the petitioners are facing problems of
storage of goods as from the shop in
possession of petitioners, there is an ingress
and outgress of the house. The prescribed
authority in absence of any pleadings or
evidence led by respondent no. 3 that the
petitioner is having basement in his
possession which he could use as a godown
merely on the basis of presumption decided
the matter, rejecting the release application.
On the contrary the only averment made in
the written statement is that there is a
basement which is in possession of the
tenants i.e. respondent no. 3.

16. Using the premises purchased
during the pendency of the case as a
godown will not give any right to the
tenants to dictate the landlord on which
property they should use as a godown. The
godown is required where the shop is
running. The petitioners just to avoid an
adverse effect on their business as under
compelling
circumstances
i.e.
long
pendency of the case, made an alternative
arrangement. The law is settled that neither
the tenant nor the court could direct the
landlord. It is the choice of the landlord to
choose the place for business which is more
suitable for him as per the law settled by
Hon'ble Supreme Court in the case of Rishi
Kumar
Govil
(supra).
The
relevant
paragraph no. 19 of the judgement of Rishi
Kumar
Govil
(supra)
is
quoted
hereinbelow:-

"19. In Ragavendra Kumar v.
Firm Prem Machinery & Co. [(2000) 1
SCC 679 : AIR 2000 SC 534] it was held
that it is the choice of the landlord to
choose the place for the business which is
most suitable for him. He has complete
freedom in the matter, In Gaya Prasad v.
Pradeep Srivastava [(2001) 2 SCC 604:
AIR 2001 SC 803] it was held that the need
of the landlord is to be seen on the date of
application for release. In Prativa Devi v.
T.V. Krishnan [(1996) 5 SCC 353] it was
held that the landlord is the best judge of
his requirement and courts have no
concern to dictate the landlord as to how
and in what manner he should live. The
1466 INDIAN LAW REPORTS ALLAHABAD SERIES
bona fide personal need is a question of
fact and should not be normally interfered
with. The High Court noted that when the
prescribed authority passed the order, son
of the respondent landlady was 20 years
old and the shop was sought to be released
for the purpose of settling him in business.
More than 20 years have elapsed and the
son has become more than 40 years of age
and she has not been able to establish him
as she has still to get the possession of the
shop and the litigation of the dispute is still
subsisting. The licence for repairing
firearms can only be obtained when there is
a vacant shop available and in the absence
of any vacant shop, licence cannot be
obtained by him. Therefore, the High Court
came to the conclusion concurring with
that of the prescribed authority and the
Appellate Authority that the need of the
landlady is bona fide and genuine.
Considering the factual findings recorded
by the prescribed authority, the Appellate
Authority and analysed by the High Court,
there is no scope for any interference in
this appeal which is accordingly dismissed.
However, considering the period for which
the premises in question was in the
occupation of the appellant, time is granted
till 31-12-2007 to vacate the premises
subject to filing of an undertaking before
the prescribed authority within a period of
2 weeks to deliver the vacant possession on
or before the stipulated date. There will be
no order as to costs."

17. The prescribed authority has
failed
to
consider
the
submission
regarding comparative hardship on the
point that the tenants, on learning about
the submission of release application
should
look
for
an
alternative
accommodation. In the present case, no
efforts were made by the tenants i.e.
respondent no. 3 to look for an alternative
accommodation. The prescribed authority
has erred in giving the finding that the
respondent no. 3 had approached the
owners of the Lohia Market and Munna
Market, who had informed respondent no.
3 that no shop is available, ignoring the
fact completely that these two addresses
or locations were told by the petitioners
and the respondent no. 3 had approached
these two places only and had not made
any effort of his own to look for an
alternative accommodation or move an
application
for
allotment.
There
is
nothing to show that any real efforts were
made by the respondents to find out
another accommodation as per the law
settled by co-ordinate Bench of this Court
in the case of Smt. Bibi Begum (supra).
Hence,
the
only
one
reasonable
conclusion to be arrived at is that the
respondent did not prove the case of
greater
hardship,
the
question
of
comparative hardship is to be decided
against the tenants. The relevant extract
of judgment of Smt. Bibi Begum (supra)
is quoted hereinbelow:-

"4. I have gone through the
judgment rendered by the prescribed
authority as well as appellate authority.
The appellate authority has failed to see the
relevant provisions of U.P. Act XIII of 1972
and the Rules made thereunder. Right from
Apex Court to this Court, the law is settled
that on submission of a release application,
the tenant must look for alternative
accommodation/residential premises. Even
as per the latest rent laws, the goodwill of a
shop keeper or businessman would not play
any dominant role because the good-will is
like fragrance, which can travel any where,
like flower's scent and the customers will
go to the new location. This Court has dealt
with this issue in Writ Petition No. 21 of
1999 (R/C).Bata Shoe Company v.VIIth
7 All. Shyam Chandra & Ors. Vs. District Judge Sultanpur & Ors.
1467
Additional District Judge, Faizabad, which,
as per learned Counsel for the petitioner,
has been decided by the Apex Court."

"8.
In
these
days,
several
shopping areas, malls, new markets are
coming up and even in small cities, new
market construction are being raised by the
development
authorities,
which
are
working hard to provide residential and
commercial accommodation to the urban
population. The tenants on learning about
the submission of release application can
look for an alternative accommodation. In
fact, the process of law is abused and the
tenants take advantage of the delay which
takes place in adjudication of rent
matters."

18. On the said same issue, the
relevant extract of the co-ordinate bench of
this court in the case of Dharmendra Singh
Sonkar (supra) is quoted hereinbelow-:

"29. In the above authority it has
also been held in para 13, that tenant must
show as to what efforts he made to
purchase or take on rent other accom
modation after filing of the release
application which is quoted below:

In Piper v.Harvey, the issue as to
comparative
hardship
arose
for
the
consideration of Court of appeals under the
Rent Act, 1975. Lord Denning opined;
when I look at all the evidence in his case
and see the strong case of hardship which the
landlord put forward, and when I see that the
tenant did not give any evidence of any
attempts made by him to find other
accommodation, to look for another house,
either to buy or to rent, it seems to me that
there is only one reasonable conclusion to be
arrived at, and that is that the tenant did not
prove (and the burden is on him to prove) the
case of greater hardship. Hudson, L.J.,
opined: the tenant has not been able to say
anything more than the minimum which every
tenant can say, namely, that he was in fact
been in occupation of the bungalow, and that
he has not at the moment any other place to
go to. He has not, however, sought to prove
anything additional to that by way of
hardship such as unsuccessful attempts to
find other accommodation, or, indeed, to
raise the question of his relative financial
incompetence as compared with the landlord.
On such state of the case, the Court answered
the issue as to comparative hardship against
the tenant and ordered his eviction.

"30. In the case of Salim Khan v.
IVth Additional District Judge, Jhansi3 has
held that in respect of comparative hardship,
tenant did not show what efforts they made to
search alternative accommodation after filing
of release application. This case sufficient to
tilt the balance of hardship against them Vide
Bhutada v.G.R. Mundada4. Moreover, rent of
Rs. 6/- per month which the tenants are
paying is virtually as well as actually no rent.
By paying such insignificant rent they must
have saved a lot of money. Money saved is
money earned. They must, therefore, be in a
position to take another house on good rent.
Further, they did not file any allotment
application for allotment of another house.
Under Rule 10(3) of the Rules framed under
the Act, a tenant, against whom release
application has been filed, is entitled to apply
for allotment of another house immediately.
Naturally such person is to be given
preference in the matter of allotment.
Respondents did not file any such allotment
application.
Thus,
the
question
of
comparative hardship has also to be decided
against the tenants. (See also Raj Kumar v.
Lai Khan and Ashis Sonar v. Prescribed
Authority)."

"33. In the instant case as stated
above, the Appellate Court had held that
the tenant has not made any effort for
search of alternative accommodation and it
1468 INDIAN LAW REPORTS ALLAHABAD SERIES
is settled proposition of law that the equity
follows law and so does sympathy. If the
factors
mentioned
in
Rule
16
are
considered, taking into consideration the
facts of this case, no doubt it is an old
tenancy but there is nothing to show that
any real efforts were made by the tenant to
find another accommodation, since the date
of moving of release application. (See also
Govind Narain v. 7th Additional District
Judge, Allahabad2 and Rani Devi Jain v.
Badloo3). So the argument as raised by
learned Counsel for petitioner that Courts
below have failed to compare the need
between the parties has got no force,
rejected."

19. As per the judgment of Hon'ble
the Supreme Court in the case of
Raghunath G. Panhale (Dead) by LRs v.
Chaganlal Sundarji and Co., reported in
(1999) 8 SCC 1, where the Hon'ble
Supreme Court has held that in order to
prove bona-fide need, a landlord does not
require to establish dire or compelling need
for a premises in order to establish his
business and it is the choice of the landlord
which would be paramount in such
circumstances.

20. The submission of learned counsel
for petitioner that the rights of the parties
stand crystallized by institution of the suit
and the subsequent development could not
be seen by placing reliance upon the
judgment of the Hon'ble Supreme Court in
the case of Nidhi versus Ram Kripal
(supra). The relevant extract of the said
judgment is quoted herein below:-

'16. Ordinarily, the rights of the
parties stand crystallised on the date of
institution of the suit. However, the court
has power to take note of the subsequent
events and mould the relief accordingly.
Power of the court to take note of
subsequent
events
came
up
for
consideration in a number of decisions. In
Om Prakash Gupta v. Ranbir B. Goyal, this
Court held as under:

"11. The ordinary rule of civil
law is that the rights of the parties stand
crystallised on the date of the institution of
the suit and, therefore, the decree in a suit
should accord with the rights of the parties
as they stood at the commencement of the
lis. However, the Court has power to take
note of subsequent events and mould the
relief accordingly subject to the following
conditions being satisfied: (i) that the
relief, as claimed originally has, by reason
of subsequent events, become inappropriate
or cannot be granted; (ii) that taking note
of such subsequent event or changed
circumstances would shorten litigation and
enable complete justice being done to the
parties; and (iii) that such subsequent event
is brought to the notice of the court
promptly and in accordance with the rules
of procedural law so that b the opposite
party is not taken by surprise. In Pasupuleti
Venkateswarlu
v.
Motor
&
General
Traders this Court held that a fact arising
after the lis, coming to the notice of the
court and having a fundamental impact on
the right to relief or the manner of
moulding it and brought diligently to the
notice of the court cannot be blinked at.
The court may in such cases bend the rules
of procedure if no specific provision of law
or rule of fair play is violated for it would
promote substantial justice provided that
there is absence of other disentitling
factors or just circumstances. The Court
speaking through Krishna Iyer, J. affirmed
the proposition that the court can, so long
as the litigation pends, take note of updated
facts
to
promote
substantial
justice.
However, the Court cautioned: (i) the event
should be one as would stultify or render
7 All. Shyam Chandra & Ors. Vs. District Judge Sultanpur & Ors.
1469
inept the decretal remedy, (ii) rules of
procedure may be bent if no specific
provision or fair play is violated and there
is no other special circumstance repelling
resort to that course in law or justice, (iii)
such cognizance of subsequent events and
developments should be cautious, and (iv)
the rules of fairness to both sides should be
scrupulously obeyed."

21. From the perusal of the judgments
as mentioned above, it is undisputed that
subsequent event/developments are not
affecting the ground taken in the release
application preferred by the petitioners as
in the release application for personal
bonafide need, the ground taken was that
now the petitioner no. 2 has become major
and got married and requires shop as
through the same shop there is ingress and
outgress of the house and the petitioners are
short of space for keeping the stock of the
goods. During this long period of litigation,
such requirement has not changed. The
business is running in the same shop, the
entry of the house is from the same shop
and with the passage of time, the business
would have been increased and there is
more requirement of godown for keeping
the stock. The petitioner no. 1 is married
having children thus, the family has
expanded, so none of the circumstances
have changed by subsequent developments
as discussed above hence, in the present
case, the rights of the parties stand
crystallized on the date of the institution of
the suit.

22. The prescribed authority, in absence
of any pleading in the written statement filed
by the tenant/respondent or adducing any
evidence that the petitioners are having
basement in their possession which can be
used as a godown, merely on the basis of
presumption rejected the release application
of the petitioners, which has not been the case
of the tenant. On the contrary, in the written
statement in para-26 and 27 of the written
statement
filed
before
the
prescribed
authority, the respondent/tenant took up the
case that they are in possession of the
basement in their tenancy and the owner of
the same is the petitioner. Before the
appellate authority, the said plea was taken
and argued and the same has been mentioned
at page-5 of the appellate order/judgment but
neither there was any discussion nor any
finding has been recorded on the said plea.

23. The appellate court has erred in
deciding the appeal by taking a new
ground/plea i.e. the petitioners had not
disclosed the nature of the business which
they are running in the shop in how much
space and which type of goods they are
storing for which the godown is required. The
said objection was never ever raised by the
respondent no. 3 either by the Prescribed
Authority or before the Appellate Court,
rather the respondent no. 3, throughout
admitted in the proceedings before the court
below that the petitioner is running the shop
and doing his business, meaning thereby there
is no denial of the running of the shop and
doing the business by the petitioners. So, on this
frivolous new ground, the appellate court has
decided the matter against the petitioners. As a
matter of fact, the appellate court has gone into
the irrelevant question as to in what item the
petitioner was carrying on his business, such
questions were never raised nor were in dispute,
more so, for the purpose whether a godown is
required or not. In the facts & circumstances as
on the record, the appellate court mislead itself
in entering into such questions foreign to the
merits of the case.

24. In view of the facts, circumstances
and discussion made hereinabove, the writ
petition is allowed.
1470 INDIAN LAW REPORTS ALLAHABAD SERIES

25. The impugned orders dated
30.04.2008 and 13.02.2007 are hereby
quashed.

26. The respondents pray for
eighteeen months' time for vacating the
premises, which is opposed by the learned
counsel for petitioners and thereafter, an
undertaking was given on behalf of the
respondents that the premises in question
will be vacated within a period of 9
months.

27. As such, the respondents are
directed to vacate the premises in question
within a period of 9 months and handover
the same to the petitioners.
----------
(2024) 7 ILRA 1470
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No. 1064 of 2021
Alonwith
Writ-A No. 6500 of 2022
&
Writ-A No. 7672 of 2024

Ashok Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rahul Jain

Counsel for the Respondents:
C.S.C.

A. Service Law - Regularisation - U.P.
Intermediate Education Act, 1921- Section
16 E (10) - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
3 - Essential/Preferential qualification - In
the letter dated 04.03.1993 issued by the
District Inspector of Schools granting approval
to the petitioner's appointment, his qualification
is written as "B.Sc. Agriculture, B.Ed." and the
same
qualification
is
mentioned
in
the
petitioner's service book. In case the petitioner
had not claimed possessing a B.Ed. degree,
there was no occasion for the authorities to
include the aforesaid qualification in his service
record. Further, had the authorities had
erroneously mentioned this qualification
on their own, it was open for the
petitioner to point out the error and to get
it rectified, but the petitioner did not do
so. Even if the petitioner's contention that B.Ed.
is not an essential qualification, is accepted, he
admits that it was a preferential qualification
and, therefore, even as per the petitioner, B.Ed.
was not an irrelevant qualification which would
have no effect on the selections, as the
candidates having preferential qualification are
given a preference over other candidates who
possess the essential qualification but do not
possess the preferential qualification. (Para 41)

B. A person who secures an appointment
by
submitting
a
forged
educational
certificate, is not entitled to claim any
opportunity of hearing. (Para 49)

Where the appointment of the petitioners is ab
initio void, they cannot be said to be the civil
servants of the State. Therefore, holding
disciplinary proceedings envisaged by Article
311 of the Constitution or under any other
disciplinary rules shall not arise. (Para 50)

In the present case, although the petitioner
claims that he was not given an opportunity of
hearing, he was repeatedly sent show cause
notices. The petitioner did not provide any
documents and on 09.10.2020, the DISs wrote
another letter with contents similar to his earlier
letter dated 18.09.2020 (On 18.09.2020, the
District Inspector of Schools Kushinagar sent a
letter to the Committee of Management of the
college stating that by means of a GO dated
08.07.2020, a direction has been issued for
verification of the educational certificates of the
teachers working in government secondary
schools, non-government aided schools and to
send a report to the Government for taking the
final action in the matter) and a copy of the
verification report sent by Deen Dayal Upadhyay