# Smt. Aneesa Khatoon & Ors v. Additional District & Sessions Judge, Court No.3 Lko. & Ors

- **Citation:** (2016) 5 ILRA 1032
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-31
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-aneesa-khatoon-ors-v-additional-district-sessions-judge-court-no-3-lko-ors-43719
- **Pages:** 14

## Headnote

Civil Law- U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Section 21 (1) (a) -
Release application - Withdrawal of release application - Application for withdrawal of withdrawal - Order
XXIII Rule 1 C.P.C. - Unilateral act - Abandonment - Section 151 C.P.C. - Inherent powers of Court -
Maintainability - Revision under Section 115 C.P.C. - Alternative remedy under Section 22 of the Act - No
interference - Writ petition dismissed

The dispute relates to two shops and a basement under the said shops, situated on the ground floor of house
no.114/81, Naya Gaon West, Nazirabad, P.S. Aminabad, Lucknow. The suit premises was owned by Mirza
Sharif Beg (since deceased). Mirza Sharif Beg was the husband of respondent no. 2 and father of respondent
nos.3 to 6. After the death of Mirza Sharif Beg in 1983, the respondent nos.2 to 6 became the owners of the
suit premises. The suit premises was originally let out by Mirza Sharif Beg to Mohd. Islam, the husband of
petitioner no.1 and the father of petitioner nos.2 to 7. After the death of Mohd. Islam, the petitioners became
the tenants of the suit premises. (Para 3)
On the basis of the material on record, the appellate authority has expressly returned a finding regarding the
genuine and bona fide requirement of the landlords. The said finding is a finding of fact based on appraisal of
evidence. In any case, in the absence of any compelling necessity there is no occasion to reconsider the
finding of fact recorded by the appellate authority. In the circumstances the finding recorded by the appellate
authority regarding the bona fide need of the landlords cannot be faulted and calls for no interference in
exercise of writ jurisdiction. (Para- 34)

Held: Para-(39,42,43,44,45)

## Text

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1032 INDIAN LAW REPORTS ALLAHABAD SERIES
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2016

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Rent Control No.- 105 Of 2014

Smt. Aneesa Khatoon & Ors. ...Petitioners
Versus
Additional District & Sessions Judge, Court No.3 Lko. & Ors. ...Respondents

Counsel for the Petitioners:
Mohd. Aslam Khan

Counsel for the Respondents:
Manish Kumar, Mohd. Naseerullah.

Civil Law- U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Section 21 (1) (a) -
Release application - Withdrawal of release application - Application for withdrawal of withdrawal - Order
XXIII Rule 1 C.P.C. - Unilateral act - Abandonment - Section 151 C.P.C. - Inherent powers of Court -
Maintainability - Revision under Section 115 C.P.C. - Alternative remedy under Section 22 of the Act - No
interference - Writ petition dismissed

The dispute relates to two shops and a basement under the said shops, situated on the ground floor of house
no.114/81, Naya Gaon West, Nazirabad, P.S. Aminabad, Lucknow. The suit premises was owned by Mirza
Sharif Beg (since deceased). Mirza Sharif Beg was the husband of respondent no. 2 and father of respondent
nos.3 to 6. After the death of Mirza Sharif Beg in 1983, the respondent nos.2 to 6 became the owners of the
suit premises. The suit premises was originally let out by Mirza Sharif Beg to Mohd. Islam, the husband of
petitioner no.1 and the father of petitioner nos.2 to 7. After the death of Mohd. Islam, the petitioners became
the tenants of the suit premises. (Para 3)
On the basis of the material on record, the appellate authority has expressly returned a finding regarding the
genuine and bona fide requirement of the landlords. The said finding is a finding of fact based on appraisal of
evidence. In any case, in the absence of any compelling necessity there is no occasion to reconsider the
finding of fact recorded by the appellate authority. In the circumstances the finding recorded by the appellate
authority regarding the bona fide need of the landlords cannot be faulted and calls for no interference in
exercise of writ jurisdiction. (Para- 34)

Held: Para-(39,42,43,44,45)

1. The finding recorded by the prescribed authority with respect to the comparative hardship is also perverse.
It is settled by a catena of decisions of the Apex Court that if during the pendency of the release application,
the tenant, does not make any effort to search for an alternative accommodation, then the question of
comparative hardship has to be decided against him.
5 All. Smt. Aneesa Khatoon & Ors. Vs Additional District & Sessions Judge, Court No.3 Lko.
 & Ors.

1033
2. In the case at hand, there is nothing on record to show that the petitioners had made any effort,
whatsoever, to look for an alternative accommodation after the filing of the release application. No such
material at least has been brought on record. This in itself is sufficient to tilt the balance in favour of the
landlords in so far as comparative hardship is concerned. In view of the facts and circumstances in their
entirety and on the findings recorded by the appellate authority, this court has no hesitation in upholding the
impugned order passed by the appellate authority.There is, thus, no merit in the present writ petition which is
hereby dismissed with cost.The petitioners are granted three months time to vacate the suit premises
provided that: Within six weeks from today, the petitioners shall file an undertaking before the prescribed
authority to the effect that on or before the expiry of a period of three months from today, they would
willingly vacate and hand over peaceful possession of the suit premises to the landlords - respondent nos.2 to
6.

3. The petitioners are further directed to clear all the arrears of rent and continue to pay the same till the time
the suit premises is actually vacated by them. In case of default in compliance with either of the conditions
mentioned above, the tenants - petitioners shall be evicted after six weeks from today, through process of
Court.

Case Law discussed:

Atma S. Berar v. Mukhtiar Singh, (2003) 2 SCC 3 - (para 18).
Shiv Sarup Gupta v. Mahesh Chand Gupta (Dr.), (1999) 6 SCC 222 - (para 19).
Bega Begum v. Abdul Ahad Khan, (1979) 1 SCC 273 - (paras 20, 40).
Sarla Ahuja v. United India Insurance Co. Ltd., (1998) 8 SCC 119 - (para 21).
Ragavendra Kumar v. Prem Machinery & Co., (2000) 1 SCC 679 - (para 32).
Uday Shankar Upadhyay v. Naveen Maheshwari, (2010) 1 SCC 503 -(para 33).
Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447 - (para 35).
Om Prakash v. Sunhari Devi, (1993) 2 SCC 397 - (para 36).
Shamshad Ahmad v. Tilak Raj Bajaj, (2008) 9 SCC 1 - (paras 37, 41)

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. Challenge in this writ petition is to the judgment and order dated 5.7.2014 passed by the
Additional District & Sessions Judge, Court No.3, allowing the appeal filed by the landlords - the
respondent nos.2 to 6, whereby the judgment and order dated 20.11.2004 passed by the prescribed
authority was set aside.

2. The circumstances under which the release application came to be filed and the
contentions of the parties may be summarized as below.

3. The dispute relates to two shops and a basement under the said shops, situated on the
ground floor of house no.114/81, Naya Gaon West, Nazirabad, P.S. Aminabad, Lucknow. The suit
premises was owned by Mirza Sharif Beg (since deceased). Mirza Sharif Beg was the husband of
respondent no. 2 and father of respondent nos.3 to 6. After the death of Mirza Sharif Beg in 1983,
the respondent nos.2 to 6 became the owners of the suit premises. The suit premises was originally
let out by Mirza Sharif Beg to Mohd. Islam, the husband of petitioner no.1 and the father of
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner nos.2 to 7. After the death of Mohd. Islam, the petitioners became the tenants of the suit
premises.

4. In September, 1998 the landlords - the respondent nos.2 to 6 herein, moved an
application under Section 21 (1) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent
and Eviction) Act 1972 (U.P. Act No.13 of 1972) (for short the 'Act') for release of the suit
premises. The case was registered as P.A. Case No.209 of 1998, Smt. Asmat Jahan & Ors. vs.
Mohd. Islam In their release application, it was alleged by the respondent nos.2 to 6 that the suit
premises was let out to Mohd Islam when the respondent nos.3 & 4 were minors; that after the
death of Mirza Sharif Beg, his family was surviving on the rental income from the property left by
him; that after the respondent nos. 3 and 4 herein grew up, the respondent nos.2 to 6 got
constructed another building on municipal plot no.114/82 situated just adjacent to house no.114/81
in the shape of a market by taking advance money from the tenants to whom the said shops were let
out; that in building no. 114/82 Mohd. Islam had also taken three shops in which he was carrying
on the same business; that the respondent nos.3 and 4 herein, were unemployed and wanted to
establish themselves in some business; that the respondent no.3 wanted to establish a general
merchant cum ready-made clothes business in the suit premises; that the respondent no.4 was
working as salesman in a private shop and he too wanted to establish his own business; that the
building no.114/82 was towards the back side and was not suitable for general merchant business
whereas, the business of book binding carried by Mohd. Islam could be carried out in the back
portion or any other shop; that Mohd. Islam had a big shop at 49 Gwyne Road, Lucknow, where he
was carrying out his wholesale business of copies in the name and style "Golden Copy House". In
the circumstances, it was prayed that the suit premises be released in favour of the respondent nos.2
to 6.

5. Mohd. Islam, the original tenant, filed a written statement controverting the facts stated
and averments made in the application and contested the claim of the landlords. In the written
statement it was admitted that the respondent nos.2 to 6 were the owners and landlords of the suit
premises. It was, however, alleged that he was carrying on the work of book binding in the suit
premises; that there were a large number of shops in the possession of the landlords; it was also
alleged that the respondent no.3 herein, had a construction business from which he earned a good
income; that the respondent no. 4 herein had a shop near Lila Cinema, where he was running his
own business; that the respondent no.4 herein had two shops at Hazratganj, where he was running
hosiery business; that in building no.114/82 there were a number of vacant shops wherein the
respondent nos.3 and 4 could very well run their business.

6. The respondent nos.2 to 6 herein filed their replication to the written statement filed by
Mohd. Islam in which it was specifically stated by them that they were residing on the first floor of
house no.114/81; that no shop in the said building was vacant as all the shops on the ground floor
were occupied by old tenants. It was reiterated that shops over plot no.114/82, measuring 32' x 30'
were constructed by taking advance money from the tenants to whom the said shops were let out;
that all the shops in the building constructed over plot no.114/82 were in occupation of the tenants
who had paid advance money for construction.
5 All. Smt. Aneesa Khatoon & Ors. Vs Additional District & Sessions Judge, Court No.3 Lko.
 & Ors.

1035
7. On the application moved by the tenant, Mohd. Islam, an Advocate Commissioner was
appointed, who submitted his report on 2.3.2002.

8. The parties led oral and documentary evidence in support of their respective cases.

9. The prescribed authority held that the landlords need was not bona fide. In so far as
comparative hardship is concerned, it was held that it was the tenant who would suffer greater
hardship than the landlords in case the release application was allowed. In the circumstances, the
release application moved by the landlords was rejected.

10. Matter was taken up in appeal by the landlords. During the pendency of litigation
Mohd. Islam, the tenant, unfortunately expired and the petitioners, who were the legal heirs were
impleaded.

11. The appellate authority again appreciated the evidence on record and held that the need
of landlords was bona fide. The issue pertaining to comparative hardship was also decided in
favour of the landlords. Accordingly, the appeal preferred by the respondent nos.2 to 6 was
allowed. The judgment and order dated 20.11.2004, passed by the prescribed authority, was set
aside and the petitioners - tenants were directed to vacate the suit premises within three months.
The petitioners - tenants were further directed to pay rent of one year towards damages for use and
occupation within one month.

12. The learned senior counsel, Mohd. Arif Khan, with his usual vehemence, has
contended that there is a distinction between desire and need. The learned counsel contended that
the parameters relating to bona fide need and comparative hardship have not been considered in the
proper perspective by the appellate authority. According to the learned counsel, while reversing a
finding of fact, the appellate authority was obliged to consider the reasoning assigned by the
prescribed authority and then record its own reasons for arriving at a different finding and since this
was not done by the appellate authority, the impugned judgment was liable to be set aside.

13. On the other hand, Shri Naseerulla Beg, has supported the order passed by the appellate
authority. The learned counsel has submitted the finding recorded by the appellate authority
pertaining to bona fide need and comparative hardship was a finding of fact and called for no
interference by this court.

14. Heard Sri Mohd. Arif Khan, learned Senior Advocate, assisted by Shri Mohd. Aslam
Khan, learned counsel for the petitioner and Shri Naseerulla Beg, learned counsel for the
respondent nos.2 to 6.

15. Having heard the learned counsel for the parties this court is of the opinion that this
writ petition deserves to be dismissed.
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
16. Under the Act, a landlord can seek eviction of a tenant by moving an application for
release under section 21 of the Act. Sub-rule (2) of Rule 16 of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Rules, 1972 specifies the facts which are to be taken
into consideration by the prescribed authority while considering an application for release under
section 21(1)(a) of the Act. The relevant portion of section 21 of the Act is extracted below: -

SECTION 21(1)(a)

"21. Proceedings for release of building under occupation of tenant.--(1) The
prescribed authority may, on an application of the landlord in that behalf, order the eviction of a
tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the
following grounds exists namely-

(a) that the building is bona fide required either in its existing form or after
demolition and new construction by the landlord for occupation by himself or any member of his
family, or any person for whose benefit it is held by him, either for residential purposes or for
purposes of any profession, trade or calling, or where the landlord is the trustee of a public
charitable trust, for the objects of the trust;

(b) * * *
* * *

Provided also that the prescribed authority shall, except in cases provided for in the
Explanation, take into account the likely hardship to the tenant from the grant of the application as
against the likely hardship to the landlord from the refusal of the application and for that purpose
shall have regard to such factors as may be prescribed."

17. As per section 21 (1) (a) of the Act, when a building is bona fide required either in the
existing form or after demolition and new construction by the landlord for occupation by himself or
any member of his family, or any person for whose benefit it is held by him, he can seek an order
of eviction against the tenant. The said provision applies equally to a residential and a nonresidential building. However, an order of eviction can be passed against a tenant under the said
provision only if the building is bona fide required by the landlord or any member of his family.

18. In the case of Atma S. Berar v. Mukhtiar Singh, (2003) 2 SCC 3, on which heavy
reliance was placed by the counsel for the petitioners, it has been held by the Apex Court that the
expression employed in various legislations may vary such as "bona fide requirement", "genuine
need", "requires reasonably and in good faith" but the underlying legislative intent is one and that is
that the need of the landlord should be genuine and honest, conceived in good faith, that is, there
must be an element of need as opposed to a mere desire or wish.

19. In the case of Shiv Sarup Gupta v. Mahesh Chand Gupta (Dr), (1999) 6 SCC 222, the
Apex Court analyzed the concept of bona fide requirement as under: -
5 All. Smt. Aneesa Khatoon & Ors. Vs Additional District & Sessions Judge, Court No.3 Lko.
 & Ors.

1037
"11. ........ A requirement in the sense of felt need which is an outcome of a sincere,
honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of
the landlord claiming to occupy the premises for himself or for any member of the family would
entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and
circumstances protruding the need of the landlord and its bona fides would be capable of
successfully withstanding the test of objective determination by the court. The judge of facts should
place himself in the armchair of the landlord and then ask the question to himself -- whether in the
given facts substantiated by the landlord the need to occupy the premises can be said to be natural,
real, sincere, honest. If the answer be in the positive, the need is bona fide."

20. In the case of Bega Begum v. Abdul Ahad Khan, (1979) 1 SCC 273, the Apex Court
held as under: -

"13. ..........the words "reasonable requirement" which undoubtedly postulate that
there must be an element of need as opposed to a mere desire or wish. The distinction between
desire and need should doubtless be kept in mind but not so as to make even the genuine need as
nothing but a desire as the High Court has done in this case. It seems to us that the connotation of
the term "need" or "requirement" should not be artificially extended nor its language so unduly
stretched or strained as to make it impossible or extremely difficult for the landlord to get a decree
for eviction. Such a course would defeat the very purpose of the Act which affords the facility of
eviction of the tenant to the landlord on certain specified grounds."

(emphasis supplied)

21. In Sarla Ahuja v. United India Insurance Co. Ltd., (1998) 8 SCC 119, the Apex Court
held as under: -

"14. ........ the requirement of the landlord for occupation of the tenanted premises
must be bona fide. When a landlord asserts that he requires his building for his own occupation, the
Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When
other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is
open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide.
It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he
can adjust himself without getting possession of the tenanted premises. While deciding the question
of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to
how else the landlord could have adjusted himself."

22. In the light of settled legal principles stated above, it is now to be seen as to whether in
the case at hand the need of the landlords is bona fide or not.

23. In his judgment dated 20.11.2004, the prescribed authority has recorded a finding that
in building no.114/81, nine shops on the ground floor and a basement as well as a huge courtyard
was in possession of the landlords and five shops in building no.114/82 were vacant and were in
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
possession of the landlords. On the basis of the said findings, the prescribed authority has held that
the landlords had sufficient alternative accommodation with them, and as such the alleged
requirement of the landlords was not a bona fide requirement. The relevant extract of the judgment
dated 20.11.2004 is reproduced below:-

"मैंने प्राथीगण तथा विपक्षी के तरि से प्रस्त त फकये गये उपरोक्त तकों के पररप्रेक्ष्य में प्रस्त त की गयी
ननणवय विगधयों की व्यिस्थाओं ि साक्षक्षयों के बयान तथा कमीिन आख्या ग-24 को भी देखा। कमीिन आख्या ग-24 में
कलमश्नर नें मानगचत्र भी संलग्न फकया है। मानगचत्र में वििाददत पररसर मकान सं0&114@81] 114@82 को लाल रंग की स्याही से
तथा हरे रंग की स्याही से प्रदलिवत फकया है। मानगचत्र के अन सार कमीिन ररपोटव भी प्रस्त त की है। कलमश्नर की ररपोटव को
देखने से यह ज्ञात होता है फक भिन संख्या 114@82 के भूतल पर 11 द कानें तथा एक हाल न मा बरामदा पक्की स्लेब का बना
ह आ है। बरामदा विपक्षी की फकरायेदारी में हैए जजसमें विपक्षी के कमवचारी कावपयां बनाने का कायव करते हैं। प्रथम तल पर एक
कमरा अटैच लैटीन बाथरुम पक्का स्लैॅेब का बना ह आ है, जो खाली है, जजसमें प्राथीगण का ताला बंद है। भिन सं0 114@82
में द कान सं0 1] 2] 3] 4] 5] हैं जो प्रागथवनी के कब्जे में हैं और खाली हैं। इस प्रकार भिन सं0 114@81 के भूतल में द कानें तथा एक
बरामदा हालन मा ि एक बेसमेन्ट में द कान पक्की नि ननलमवत बनी है। एक जीना दो छत्ती द कानों को गया है। प्रथम तल पर
उत्तरी जीने से जाने पर दो छत्ती दो द कानें थीं, जजसके जीने पर ताला बंद होने के कारण ननरीक्षण नहीं कर सका। प्रथम तल
पर तीन हालन मा बडे कमरे निननलमवत बनाये गये प्रतीत होते हैं, जजसमें प्राथी के बबस्तर आदद ररहायिी सामान मौजूद था।
एक बडा कमरे में प्रागथवनी नें अपना फकचन बना रखा है। फकरायेदारी िाले भाग में विपक्षी नें जमीन ि पक्का ननमावण ििव 1990
िरिरी से ििव 1991 तक कराया है। विपक्षी नें उक्त ननमावण अपने खचे से कराया है, जजस पर प्रागथवनी नें कोई आपवत्त नहीं की
थी। इस प्रकार कमीिन ररपोटव में कलमश्नर द्िारा फकये गये कथन को देखने से यह ज्ञात होता है फक प्रागथवनी के पास भिन
सं0 114/82 में पांच द कानें खाली पडी हैं जो उसके व्यिसाय के ललये पयावप्त हैं तथा उसकी आिश्यकता की पूनतव के ललए भी
पयावप्त हैं। भिन सं0 114/81 में भी 9 द कानें भूतल पर और एक बेसमेन्ट पर एक बरामदा हालन मा मौजूद है जजस पर प्रागथवनी
का कब्जा दखल है। इस प्रकार उपरोक्त दोनों द कानों में प्रागथवनी ि प्रागथवगण के ललए पयावप्त ररहाइि ि व्यिसाय हेत स्थान
है। उपरोक्त कगथत वििाददत पररसर की आिश्यकता प्रागथवनी को प्रतीत नहीं होती है।"

Thereafter, the prescribed authority has discussed the case laws cited on behalf of
the contesting parties and has then concluded as under: -

"प्रस्त त मामले में कमीिन आख्या ग-24 में दी गई ररपोटव में फकये गये कथनों से यह ज्ञात होता है फक प्राथी
के पास व्यिसाय हेत पयावप्त जगह है इसललए दी गई व्यिस्थाओं के पररप्रेक्ष्य में प्राथीगण की उपरोक्त वििाददत पररसर के
ललए तीव्र एिं सदभािपूणव आिश्यकता का कथन साबबत नहीं होता है।"
a(emphasis supplied)

24. A perusal of the judgment dated 20.11.2004 would show that the prescribed authority
has based his findings regarding the availability of alternative accommodation with the landlords
solely on the report dated 2.3.2002 of the Advocate Commissioner. The relevant extract of the
Advocate Commissioners report dated 2.3.2002 is reproduced below for ready reference: -
5 All. Smt. Aneesa Khatoon & Ors. Vs Additional District & Sessions Judge, Court No.3 Lko.
 & Ors.

1039
"यह फक वििाददत स्थल ननरीक्षण के दौरान मैंने पाया फक भिन संख्या-114/82 ि 114/81 नया गािं पजश्चमी
खडन्जा गली के दक्षक्षण मे जस्थत है। भिन संख्या-114/82 को नीले रंग की लाइनों से बबन्द ए-बी-सी-डी-एि-जी-एच-आई-जे-के-एलएम से दिावया गया है। नया गाि पजश्चमी गली के कामन गेट के पूिी ओर तीन द कानें क्रमिः 1 से 3 िटर य क्त बनी है।
जजनकी चैडाई एक मीटर तीस सेमी0 है। उन तीनों द कानों में िटर बन्द थे जजस कारण अन्दर से नाप नहीं हो सकी तथा
द कान संख्या-3 कामन पैसेज के अन्दर जीना जो भूतल से प्रथम तल को गया है उसी के नीचे बनी है। कामन पैसेज के पजश्चम
में द कान संख्या-4 ि 5 िटर य क्त बनी है। जजसकी चैडाई एक मीटर पैसठ सेमी0 है परन्त गहराई/लम्बाई द कान बन्द होने के
कारण अन्दर से नहीं नापी जा सकी। कामन पैसेज की चैडाई लगभग 2 मी0 65 सेमी0 है। कामन पैसेज से अन्दर जाने पर
पजश्चम में द कान संख्या-6 ि 7 है जजसकी चैडाई एक मीटर अस्सी सेमी0 तथा गहरी अथावत लम्बाई 4 मीटर 20 सेमी0 िटर
य क्त द कान चाय की ि जनरल मचेन्ट की है। तथा कामन पैसेज के पूिी ओर द कान सं0&8] 9] 10 ि 11 िटर य क्त बनी है
जजसकी चैडाईयां एक मीटर सत्तर सेमी0 है। तथा लम्बाई 3 मी0 70 सेमी0 है।

उपरोक्त द कानें पन्ट की , कम्प्यूटर की ि वप्रजन्टंग की ि स्क्रीन वप्रजन्टंग की हैं तथा कामन पैसेज के
दक्षक्षण-पजश्चम में भूतल से लगभग डेढ़ फिट नीचे हालन मा िरान्डा पक्का जो देखने से नया प्रतीत होता है िह बरान्डा कावपयों
का कारखाना जो प्रनतिादी की फकरायेदारी में है उक्त बरान्डा 5 मी0 55 सेमी0 लम्बाई में तथा 4 मीटर 15 सेमी0 चैडाई में पूिव ि
पजश्चम में बना है। जजसमें विपक्षी एक पजन्चंग मिीन, 3 स्अीगचंग मिीने , एक पेपर कदटंग मिीन, एक पपेर दाब मिीन ,
एक डाई मिीन , एक स्टीगचंग पािर मिीन, एक गोजडेन डाई मिीन , एक डाई इम्िोज मिीन, एक िारिेदटंग मिीन तथा
लकडी का ठीहा मौजूद था विपक्षी नें उपरोक्त मिीनों के नाम बताये जजसमें विपक्षी के कई कमवचारी मिीनों पर काम कर रहे
थे एिं कावपयों की बाइजन्डंग भी हो रही थी तथा कावपयों का कािी स्टाक जमा था तथा डायररयों का भी स्टाक जमा था।"

 and then

"तद परान्त भिन संख्या-114/81 को बनाये गये नक्िा नजरी में बबन्द अ-ब-स-द-य-र-ल-ि तथा ए-ई0 जी
को लाल रंग की लाइनों से दिावया गया है।"

 and then

"भिन संख्या-114/81 के ऊपरी भाग का ननरीक्षण करके नीचे आया तो पैसेज से बाहर आने पर
द कान संख्या-1 का ननरीक्षण फकया उक्त द कान िटर य क्त 1 मी0 80 सेमी0 चैडी तथा 2 मी0 70 सेमी0 लम्बी पक्की
गोस्त की द कान है जो ख ली ह ई थी द कान संख्या-1 के दक्षक्षण में एक जीना पक्का बना है जीने से ऊपर चढ़ने पर एक
कम्प्यूटर की द कान संख्या-5, 3 मीटर 20 सेमी0 ग 2 मी0 15 सेमी0 की पक्की बनी है। द कान संख्या-5 के दक्षक्षण में
द कान संख्या-6 िटर य क्त पक्की द कान एक मीटर 10 सेमी0 ग 2 मीटर 15 सेमी0 लम्बी बनी है जजसमें वप्रजन्टंग
ब्लाक का काम हो रहा था। द कान संख्या-6 के दक्षक्षण में द कान संख्या-7 ि 8 दो दर की िटर य क्त द कान पक्की 2
मी0 20 सेमी0 चैडी ग 3 मी0 90 सेमी0 लम्बी बनी है। जजसमें भी वप्रजन्टंग मोनों ब्लाक का कायव हो रहा था।

 द कान संख्या-8 के दक्षक्षण में द कान संख्या-9, 2 मी0 90 सेमी0 ग 7 मी0 लम्बी पक्की बनी है।
जजसमें विपक्षी की दो क लसवयां ि एक मजे लकडी की पडी थी जजसमें तीन रजजस्टर ि पेपर िेट तथा आफिस की िाइलें
रखी थीं तथा द कान में कावपयों का अलग अलग साइज का स्टाक कािी जमा था उक्त द कान संख्या-9 के नीचे ही 2
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
मी0 90 सेमी0 चैडा तथा 7 मी0 लम्बा पक्का बेसमेन्ट बना है। जजसमें विपक्षी की कावपयों का स्टाक कािी मात्रा में
जमा है कावपयां बण्डलों में अलग-अलग साइज की लगी थीं बेसमेन्ट में जाने हेत द कान संख्या-9 में एक तरि 1 मी0
चैडा जीना बना है जीना से बरान्डा हाल में पह ंचने पर बरान्डा हाल 2 मी0 65 सेमी0 ग 5 मी0 55 सेमी0 का पक्का
वपलर पर नया बना है किेल दक्षक्षण में दीिार है। उपरोक्त बरान्डा में विपक्षी की कावपयों की बाइजन्डंग हो रही थी तथा
विपक्षी के कमवचारी मिीनों पर काम कर रहे थे जजनकी संख्या-7 के आस-पास थी। बरान्डा की छत पर ही एक मीटर
ऊंचाई पर दो छतती भी बनी है, दो छतती में भी कावपयों का स्टाक जमा था। वििाददत स्थल का सूक्ष्य ननरीक्षण करने
पर मैंने पाया फक भिन संख्या-114/82 के भूतल मे 11 द कानें मौजूद तथा एक हालन मा बरान्डा पक्की सीलेप नया बना
है तथा नया बरान्डा 5 मी0 55 सेमी0 ग 4 मी0 15 सेमी0 विपक्षी की फकरायेदारी में है जजसमें विपक्षी कावपयां बनाने
का कायव कमवचाररयों द्िारा फकया जा रहा था तथा प्रथम तल पर एक कमरा अटैच लैदटन बाथरुम 3 मी0 60 सेमी0 ग
4 मी0 20 सेमी0 का पक्का सीलेप बना है जो खाली थी जजसमें प्रागथवनी का ताला बन्द था जजसको प्रागथवनी के प त्र पें
ताला खोलकर ननरीक्षण कराया था तथा भिन संख्या - 114/82 में द कान संख्या-1, 2, 3, 4 ि 5 बन्द थी जजस कारण
ननरीक्षण नहीं हो सका। द कान संख्या-1 से 5 के सम्बन्ध मे उपजस्थत लोगों नें बताया फक उक्त द कानें प्रागथवनी के पास
कब्जे में हैं जो खाली हैं।"
(emphasis supplied)

25. In his report the Advocate Commissioner has stated that some shops in building
no.114/81 were locked and as such those shops could not be inspected. A perusal of the extract of
the report dated 2.3.2002 (reproduced above) would show that at the time of inspection shops no.1,
2, 3, 4 & 5 in building no.114/82 were locked and as such the Advocate Commissioner could not
inspect them. The Advocate Commissioner has, however, mentioned in his report that persons
present at the time of inspection informed him that the said shops were vacant and were in
possession of the landlords.

26. In the report of the Advocate Commissioner, the name of the persons, who, it was
alleged, were present at the time of inspection, was conspicuously missing. The prescribed
authority has given too much emphasis to the alleged statement made by some unknown persons at
the time of inspection that the five shops in building no.114/82 were vacant and in possession of
the landlords. Moreover, there is nothing in the report of the Advocate Commissioner which may
indicate that nine shops on the ground floor and a basement as well as a huge courtyard in building
no.114/81 was in possession of the landlords as has been held by the prescribed authority. The
landlords, it may be mentioned, had categorically and emphatically stated that all the shops in both
the buildings were let out and were in possession of the tenants. Merely for the reason that some
one has stated that some shops were vacant and in possession of the landlords, it cannot be
conclusively said that the landlords had in their possession vacant shops as has been held by the
prescribed authority, unless such fact was corroborated by some other oral or documentary
evidence.

27. Admittedly, the landlords had a number of shops including the suit premises but there
is nothing on record to show that any of such shop was vacant and suitable for the purpose of the
proposed business. The finding recorded by the prescribed authority that the landlords had in their
5 All. Smt. Aneesa Khatoon & Ors. Vs Additional District & Sessions Judge, Court No.3 Lko.
 & Ors.

1041
possession shops in which they could carry on their business, was absolutely perverse and was
contrary to the evidence on record and has rightly been reversed by the appellate authority.

28. In the case at hand the prescribed authority has not held that the respondent nos.3 & 4
did not have a bona fide need of some premises for doing their business. What has been held is that
the landlords had with them vacant shops where they could very easily satisfy their need. It is
settled by a catena of decisions of the Apex Court that the landlord is the best judge of his
requirement for residential or business purpose and he has got complete freedom in the matter and
it is not for the courts to say where the landlord should carry on his business.

29. Admittedly, the landlords are residing on the first floor of house no.114/81 and the suit
premises is situated on the ground floor of the said building. As per the Commissioners report, the
suit premises measures about 2 m 90 cm x 7 m whereas the five shops situated in building
no.114/82 alleged to be vacant and in possession of the landlords are much smaller in size. The
prescribed authority has also not discussed as to whether the alleged accommodation available with
the landlords was suitable for their proposed business. Apart from the above, a perusal of the report
of the Advocate Commissioner would show that in the suit premises no binding work was being
carried out. The shops as well as the basement was being used as a godown where copies were
stock piled. The binding work was actually being carried out in the courtyard next to the suit
premises. Whereas, the main binding work, as per the said report was being carried on in the
premises in the tenancy of the petitioners in building no.114/82.

30. It is alleged by the counsel for the respondent nos.2 to 6 that an objection to the
Advocate Commissioners report was filed on behalf of the landlords but the same was not disposed
off by the prescribed authority. A copy of the objection filed by the landlords to the report of the
Advocate Commissioner has been annexed alongwith the counter affidavit filed on their behalf. No
rejoinder affidavit was filed on behalf of the petitioners to the said counter affidavit. The averments
made in the counter affidavit are uncontroverted. Be that as it may.

31. The learned counsel has vehemently submitted that the alleged bona fide need of the
private respondents was not genuine, a perusal of the written statement filed on behalf of Mohd
Islam (since deceased) would show that nowhere the need of the respondents has been denied on
the contrary it has been pleaded that the landlords had in their possession other shops where their
need could be satisfied. The respondent nos.3 & 4 herein are educated and unemployed and in need
of settling themselves independently in business. By no stretch of imagination it can be said that the
requirement pleaded by the landlords falls short of felt need and is merely a desire.

32. In the case of Ragavendra Kumar v. Prem Machinery & Co., (2000) 1 SCC 679, the
Apex Court in paragraph 10 of the said report has held as under: -

"10. The learned Single Judge of the High Court while formulating the first
substantial question of law proceeded on the basis that the plaintiff landlord admitted that there
were a number of plots, shops and houses in his possession. We have been taken through the
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
judgments of the courts below and we do not find any such admission. It is true that the plaintiff
landlord in his evidence stated that there were a number of other shops and houses belonging to
him but he made a categorical statement that his said houses and shops were not vacant and that the
suit premises is suitable for his business purpose. It is a settled position of law that the landlord is
the best judge of his requirement for residential or business purpose and he has got complete
freedom in the matter. In the case in hand the plaintiff landlord wanted eviction of the tenant from
the suit premises for starting his business as it was suitable and it cannot be faulted."
(emphasis supplied)

33. In the case of Uday Shankar Upadhyay v. Naveen Maheshwari, (2010) 1 SCC 503, the
Apex Court has opined as under: -

"5. It may be noted that the first appellate court has not held that the sons of
Plaintiff 1 do not have bona fide need of some premises for doing their business. All that it held
was that the alternative accommodation on the first floor which is a hall can be used for doing
business.

****

7. In our opinion, once it is not disputed that the landlord is in bona fide need of
the premises, it is not for the courts to say that he should shift to the first floor or any higher floor.
It is well known that shops and businesses are usually (though not invariably) conducted on the
ground floor, because the customers can reach there easily. The court cannot dictate to the landlord
which floor he should use for his business; that is for the landlord himself to decide. Hence, the
view of the courts below that the sons of Plaintiff 1 should do business on the first floor in the hall
which is being used for residential purpose was, in our opinion, wholly arbitrary, and hence cannot
be sustained."

(emphasis supplied)

34. On the basis of the material on record, the appellate authority has expressly returned a
finding regarding the genuine and bona fide requirement of the landlords. The said finding is a
finding of fact based on appraisal of evidence. In any case, in the absence of any compelling
necessity there is no occasion to reconsider the finding of fact recorded by the appellate authority.
In the circumstances the finding recorded by the appellate authority regarding the bona fide need of
the landlords cannot be faulted and calls for no interference in exercise of writ jurisdiction.

35. In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447 the Apex
Court in paragraph 16 of the said report stated: -

"16. .....unless there was any grave miscarriage of justice or flagrant violation of
law calling for intervention it was not for the High Court under Articles 226 and 227 of the
Constitution to interfere. If there is evidence on record on which a finding can be arrived at and if
5 All. Smt. Aneesa Khatoon & Ors. Vs Additional District & Sessions Judge, Court No.3 Lko.
 & Ors.

1043
the court has not misdirected itself either on law or on fact, then in exercise of the power under
Article 226 or Article 227 of the Constitution, the High Court should refrain from interfering with
such findings made by the appropriate authorities."

36. In the case of Om Prakash v. Sunhari Devi, (1993) 2 SCC 397, this Court in a petition
by the tenants, set aside the finding recorded by the appellate authority and dismissed the release
application. While allowing the appeal preferred by the landlord, the Apex Court held as follows: -

"5. Even in a second appeal the High Court must restrict itself to questions of law;
all the more so in a writ petition. We have referred to the findings of the High Court in some detail.
They leave us in no doubt that the High Court re-assessed the evidence and went beyond its
legitimate jurisdiction."

37. In the case of Shamshad Ahmad v. Tilak Raj Bajaj, (2008) 9 SCC 1, the Apex Court
has held as follows: -

"38. Though powers of a High Court under Articles 226 and 227 are very wide and
extensive over all courts and tribunals throughout the territories in relation to which it exercises
jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in
nature. The High Court does not act as a court of appeal or a court of error. It can neither review
nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or
inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its
own decision for that of the inferior court or tribunal. The powers are required to be exercised most
sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals
within the limits of law."

38. In so far as comparative hardship is concerned, the prescribed authority has held that as
there was no accommodation available at the place where the tenant was carrying on business and
as such it was the tenant who would suffer greater hardship than the landlords in case the release
application was allowed. The relevant extract of the judgment dated 20.11.2004 runs as under: -

"विपक्षी का व्यिसाय जजस स्थान पर फकया जा रहा है, उस स्थान पर विपक्षी के पास अनतररक्त
व्यिसाय का स्थान नही है इसललए विपक्षी की उक्त मकान के संबंध में सदभािपूणव एिं तीव्र आिश्यकता प्रतीत होती है
और प्राथीगण का उपरोक्त द कान को खाली नहीं कराये जाने से प्राथीगण के पक्ष में त लनात्मक द रुहता होने का कथन
साबबत नहीं होता है।"

39. The finding recorded by the prescribed authority with respect to the comparative
hardship is also perverse. It is settled by a catena of decisions of the Apex Court that if during the
pendency of the release application, the tenant, does not make any effort to search for an alternative
accommodation, then the question of comparative hardship has to be decided against him.
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
40. In the case of Bega Begum (supra), the Apex Court ruled as under: -
"27. Thus, what is established from the evidence of the defendants is that if they
are ejected, they might not get a house as big as the house in dispute in the very locality where
the disputed house is situated. There is no clear evidence in the first place to show that there is no
other business locality in the city at all or that if there is any other business locality attempts were
made by the defendants but they were unable to get any house."

41. In the case of Shamshad Ahmad (supra), the Apex Court in paragraph 50 of the report
held as follows: -

"50. Regarding comparative hardship, nothing has been stated by the tenant as to
whether any attempt has been made by him to get alternative accommodation and he failed to get
such accommodation. In the circumstances, in our opinion, the appellate authority was right in
observing that there was no evidence to show that no shop was available to the tenant. It is quite
possible, as noted by the appellate authority, that the tenant might have to pay more rent. But that
would not preclude the landlords from getting possession of the suit shop once they had proved
genuine need of the property.

42. In the case at hand, there is nothing on record to show that the petitioners had made
any effort, whatsoever, to look for an alternative accommodation after the filing of the release
application. No such material at least has been brought on record. This in itself is sufficient to tilt
the balance in favour of the landlords in so far as comparative hardship is concerned.

43. In view of the facts and circumstances in their entirety and on the findings recorded
by the appellate authority, this court has no hesitation in upholding the impugned order passed by
the appellate authority.

44. There is, thus, no merit in the present writ petition which is hereby dismissed with
cost.

45. The petitioners are granted three months time to vacate the suit premises provided
that: