# Smt. Kusum Gupta Defendant-Tenant v. Prescribed Authority/Civil Judge (Sr. Div.), Distt. Shahjahanpur & Ors

- **Citation:** (2022) 11 ILRA 1047
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-09
- **Case number:** Writ-A No. 3967 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kusum-gupta-defendant-tenant-v-prescribed-authority-civil-judge-sr-div-47947
- **Pages:** 15

## Headnote

Civil Law - Constitution of India - Article -
226, - U.P. Urban Building Regulation of
Letting, Rent and Eviction Act, 1972 -
Section - 21(1)(a) - Transfer of Property
Act,1882 - Section - 107 - Tenant's Petition -
challenging impugned order of release &
eviction - Question of comparative hardship -
Landlord moved application for release &
eviction of demised shop on the ground of bona
fide needs - tenant's case that she has
constantly made efforts to secure another shop
on rent, but remained unsuccessful which has
not been considered - eviction of tenant would
certainly involve some hardship - but where the
landlord's bona-fide need is established, the
tenant's interest has to yield on the scale of
comparative hardship - landlord cannot be
deprived of the gainful use of his own premises
- Court finds that, both of Courts of fact below
have found the case of Landlord established on
issue of bona-fide need and comparative
hardship - it is not for this court to interfere with
those findings of fact, merely because a
different view, even a better one, is possible -
petition fails and is dismissed - directions issued
for vacating the demised shop accordingly.(Para
- 34, 35, 37, 39, 40)

Writ Petition is dismissed. (E-11)

List of Cases cited: -

## Text

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11 All. Smt. Kusum Gupta Vs. Prescribed Authority/Civil Judge (Sr. Div.), Distt. Shahjahanpur &
 Ors.
1047
amendment was made applicable on and
from the date of its publication in the
Official Gazette. We do not agree. A
perusal of the Press Note dated March 10,
2021 indicates that the Commission have
clearly mentioned therein that it has
received application forms from candidates
for the PCS Examination, 2021 in response
to the advertisement dated February 5,
2021 by the last date fixed i.e. March 5,
2021. It is then said that in some cases,
mistakes about the photographs or in the
signatures of the candidates made, have
been found, the information regarding
which
has
been
posted
on
the
Commission's website. The Notification/
Press Note then goes on to say that the
candidates
who
have
uploaded
their
application forms carrying defects relating
to their photographs or signatures, would
have last opportunity between March 10,
2021 and March 17, 2021, to upload their
correct
photographs
and
signatures.
Thereafter, there would be no further
opportunity.

34. The said Notification/ Press Note
dated March 10, 2021, in our opinion, has
been patently misconstrued by the learned
Single Judge to be an extension of the last
date for receipt of the application forms for
the PCS Examination, 2021. It is no more
than extension of a limited facility to those
candidates, who had applied by the last date
fixed i.e. March 5, 2021, but had some errors
or
discrepancy
about
their
uploaded
photographs or signatures, to rectify those
errors. There was no extension of the last date
for submission of the application form.
Contrary to the opinion of the learned Single
Judge, we think that the Notification/ Press
Note dated March 10, 2021 reinforces the
position that the last date for receipt of the
application forms from eligible candidates
was March 5, 2021.

35. Having found the legal position
obtaining in the case that the rule about the
date by which eligibility under the Third
Amendment Act has to be considered is the
last date, on which the application forms for
the examination in question have to be
submitted,
the
benefit
of
the
Third
Amendment Act, which came into force after
the last date for receipt of application forms
for the PCS Examination, 2021, would not
enure to the writ petitioners' benefit.

36. So far as the application of the
principle of estoppel after sitting the
examination is concerned, the learned Single
Judge has discarded it for reason that it would
not be applicable to a case, where it is a
question
of
discrimination
based
on
misapplication of the Rules. We do not
disagree with that part of the reasoning of the
learned Judge, but the same would be of no
consequence in view of the other findings of
ours in this judgment.

37. In the result, this Appeal succeeds
and is allowed. The impugned judgment and
order dated August 2, 2022 passed by the
learned Single Judge is set aside and the writ
petition stands dismissed.
----------
(2022) 11 ILRA 1047
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 3967 of 2019

Smt. Kusum Gupta
 ...Defendant-Tenant-Petitioner
Versus
Prescribed Authority/Civil Judge (Sr. Div.),
Distt. Shahjahanpur & Ors.
 ...Respondents
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Kshitij Shailendra

Counsel for the Respondents:
Sri Utpal Chatterjee, Sri Shireesh Gopesh

Civil Law - Constitution of India - Article -
226, - U.P. Urban Building Regulation of
Letting, Rent and Eviction Act, 1972 -
Section - 21(1)(a) - Transfer of Property
Act,1882 - Section - 107 - Tenant's Petition -
challenging impugned order of release &
eviction - Question of comparative hardship -
Landlord moved application for release &
eviction of demised shop on the ground of bona
fide needs - tenant's case that she has
constantly made efforts to secure another shop
on rent, but remained unsuccessful which has
not been considered - eviction of tenant would
certainly involve some hardship - but where the
landlord's bona-fide need is established, the
tenant's interest has to yield on the scale of
comparative hardship - landlord cannot be
deprived of the gainful use of his own premises
- Court finds that, both of Courts of fact below
have found the case of Landlord established on
issue of bona-fide need and comparative
hardship - it is not for this court to interfere with
those findings of fact, merely because a
different view, even a better one, is possible -
petition fails and is dismissed - directions issued
for vacating the demised shop accordingly.(Para
- 34, 35, 37, 39, 40)

Writ Petition is dismissed. (E-11)

List of Cases cited: -

1. Manorama Dubey Vs Dr. Santosh Kumar
Khanna & ors., 2017 (3) ARC 468,

2. Syed Sugara Zaidi Vs Laeeq Ahmad (Dead)
through LRs & ors., (2018) 2 SCC 21,

3. Dr. K. Gopal Vs Smt. Sudarshan Devi Bhatia,
2012 (92) AllLR 364,

4. Kishore Kumar Chaurasia Vs Durga Devi,
2016 (2) ARC 642,

5. Gyan Prakash Vs Ram Kumar Goyal, 2017 (1)
ARC 413,
(Delivered by Hon'ble J.J. Munir, J.)

1. This is a tenant's writ petition,
challenging an order of release and eviction
under Section 21(1)(a) 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')
passed concurrently by the two Authorities
below.

2. Shyam Sundar Gupta moved an
application for release and eviction under
Section 21(1)(a) of the Act before the
Prescribed Authority (Civil Judge, Sr. Div.,
Shahjahanpur), seeking release of the shop,
detailed at the foot of the application and
currently in the tenancy occupation of Smt.
Kusum Lata, the petitioner. The application
was moved by Shyam Sundar Gupta,
hereinafter referred to as 'the landlord' with
a case that the shop, subject matter of
proceedings (for short, 'the demised shop')
was exclusively owned by the landlord.
The demised shop had fallen to the
landlord's share in a family settlement on
24.04.1998, a fact admitted to Smt. Kusum
Lata. Smt. Kusum Lata has, later on in
proceedings before the Courts below, been
referred to as Smt. Kusum Gupta. It is
clarified that Smt. Kusum Lata and Smt.
Kusum Gupta are one and the same person.
For the sake of convenience, Smt. Kusum
Gupta shall hereinafter be referred to as 'the
tenant'.

3. It is the landlord's case that the
tenant is in occupation of the demised shop
at a monthly rent of Rs.800/- since
27.11.1987. The landlord's father, Radhey
Shyam Gupta had executed a registered
lease dated 27.11.1987 in the tenant's
favour, letting out the demised shop for a
term of ten years with a stipulation that at
the end of every ten years, if the term of the
11 All. Smt. Kusum Gupta Vs. Prescribed Authority/Civil Judge (Sr. Div.), Distt. Shahjahanpur &
 Ors.
1049
tenancy is enlarged, there would be an
escalation in rent for the next ten years by
10% automatically. The landlord's father
passed away in the year 1997 and the
landlord, in the events to follow, did not
renew or extend the lease. In consequence,
the term of the lease has not been renewed
and the tenancy has outlived its life. It is no
longer current. It was also pleaded by the
landlord that the demised shop was
constructed, admittedly prior to the year
1987 and is, accordingly, governed by the
provisions of the Act. The landlord is
employed with the Ordnance Factory at
Shahjahanpur and scheduled to retire on
30.06.2011. He is serving on the post of
Inspector (Tailoring). The landlord asserted
that post retirement, he would estimatedly
draw a pension of Rs.5000/- per mensem.
During service, the landlord has drawn
excessively from his Provident Fund to
meet contingent expenditure, according to
requirements of the family. The said
withdrawal has been made in advance.
Likewise, the residue of the landlord's
gratuity is a negligible sum. Upon his
retirement,
the
landlord
requires
the
demised shop to keep himself busy,
augment his income to secure himself
against age-related ailments, to earn money
for defraying the expenses of his daughter's
wedding, and above all, to settle his
younger son in business, where there is
tough competition to face. It is on all the
above counts that the landlord needs the
demised shop bona fide.

4. The landlord has, in his family,
besides himself, his aged mother, his wife
Smt. Vijay Laxmi, two sons Saurabh Gupta
and Tushar Gupta and a daughter Km.
Shweta Gupta. The landlord's wife is a
teacher at the Baba Vishwanath Junior
High
School,
Town
Hall
Road,
Shahjahanpur on a monthly salary of
Rs.5000/-. The elder son Saurabh Gupta is
a Public Relations Officer with the Bajaj
Allianz and posted at NOIDA. He is a
married man, who receives a total monthly
salary of Rs.18,000/-. He resides with his
wife at NOIDA. Given the dearness in the
present times, he does not extend any
financial help to the landlord nor is he
capable of doing that. The landlord's other
son,
Tushar
Gupta
has
passed
his
Intermediate
Examination
and
after
retirement, the landlord would not be in a
position to educate his son further.
Accordingly, he needs the demised shop to
enable his son to be by his side in order to
establish and run a shop, dealing in
cosmetics, clothes, saaris, branded shirts,
trousers etc. The landlord's daughter is aged
24 years and has done her graduation. She
can well take care of the household and the
landlord
bears
the
responsibility
of
arranging her marriage. After retirement,
the landlord would be without livelihood.
He has no such member in the family
domiciled at Shahjahanpur, whom the
landlord may look up to in times of need
and one who could provide for the landlord
or his family or help them in any manner.
In the circumstances, the only option
available to the landlord is to seek release
of the demised shop and establish his own
shop therein, which would enable the
landlord to stay active until he lives in the
mortal world, and at the same time, marry
off his daughter. It would also help him
ensure that his son Tushar Gupta becomes
proficient in business. It is the landlord's
assertion that there is no other shop,
besides the demised shop to establish
himself and his son in business.

5. By contrast, it is said for the tenant
that he has two daughters, both of whom
have
received
higher
education
in
Ghaziabad and are in receipt of handsome
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
emoluments. They are settled at Delhi. The
tenant's son, Amit, who was married
recently, owns a number of tankers that he
not only leases out for transportation, but
also uses them to carry his own goods for
trade in those tankers. The tenant's
relationship with her son is not cordial. In
the event, the tenant vacates the demised
shop, she would not suffer any hardship.
Her husband Ashok Kumar is engaged in
the business of a cloth merchant and
earlier, would trade in gold biscuits that he
bought in Bombay and sold off in
Shahjahanpur. The balance of comparative
hardship lies in favour of the landlord. It
was also pleaded by the landlord that the
tenant keeps indifferent schedule and opens
shop once in a while during the course of a
week or two. In case the tenant vacates the
demised shop, she would not suffer any
injury. She can easily shift business to
another premises, whereas the landlord has
no other alternative arrangement. It would
be very inappropriate if the landlord
establishes his shop taking the premises on
rent though he has his own. At a distance of
200 yards from the demised shop, which is
located in the Sadar Bazar, Shahjahanpur,
is the shop of one Krishna Gopal. The said
shop is a big one and located on the
roadside. It is situate in Mohalla Sadar
Bazar, opposite the Arya Mahila Degree
College. The said shop is available on rent
and
also
up
for
sale.
The
entire
circumstances, including how Krishna
Gopal's business in the said shop has come
to an end, have been pleaded by the
landlord, as also the fact that the shop
available on rent, and otherwise lying
closed. It is on the basis of these averments
that the landlord asked the demised shop to
be released.

6. The tenant put in his written
statement and admitted the execution of the
lease deed dated 27.11.1987 and the terms
thereof. The fact, that the Act applies, is also
admitted to the tenant. In the additional pleas,
it is the tenant's case that she entered the
demised shop as a tenant on a monthly rent of
Rs.800/- through the registered lease deed
dated 27.11.1987, executed by Radhey
Shyam Gupta. According to the covenants in
the lease, the term is ten years, whereafter it
is extendable by ten years, that is to say, up to
the year 2007. It is also provided in the lease
that after the first extension of ten years, a
further extension of another ten years can be
done, which would secure the lease up to the
year 2017. Thereafter, the tenancy could
continue by consent of parties. As such, the
tenant's case is that given the terms of the
lease, the landlord is not entitled to institute
the present proceedings for release, which are
premature and, therefore, not maintainable.
The lease has not expired by efflux of time.
The application for release has been instituted
contrary to terms of the lease. The case is
barred by the principle of estoppel and
acquiescence. According to the tenant, the
landlord is bent upon evicting the tenant by
stating falsehood and thereby extinguish her
source of livelihood. In order to fulfill the
aforesaid wish of his, the landlord served a
notice dated 22.12.1997, that was replied to
by the tenant. This was followed by a notice
served by the landlord himself. It was
absolutely baseless and demanded of the
tenant to vacate the demised shop, besides
raising an illegal demand of rent etc. A suit
for eviction was instituted in the Court of the
Judge, Small Cause being S.C.C. Suit No. 14
of 1999, seeking the tenant's eviction. The
said suit was tried and dismissed by the Trial
Judge vide judgment and decree dated
25.05.2011.

7. It is tenant's case that the aforesaid
facts show that it is the landlord's desire to
evict the tenant, which has not been fulfilled
11 All. Smt. Kusum Gupta Vs. Prescribed Authority/Civil Judge (Sr. Div.), Distt. Shahjahanpur &
 Ors.
1051
so far. The case is said to be barred by res
judicata as well. The landlord draws a
monthly pension of Rs.35,000/-. He has
received a lavish sum of money towards
Provident
Fund,
Gratuity
and
Group
Insurance.
The
landlord's
wife
is
a
Headmistress. She draws a salary of
Rs.40,000/- per month. The elder son
Saurabh Gupta is employed with the Bajaj
Allianz at NOIDA, drawing a monthly sum
of Rs.50,000/-. His wife is also in service and
earns a salary of Rs.30,000/- per month. The
younger son Tushar Gupta, whose need has
been pleaded by the landlord alongside his
own, after doing his graduation, is preparing
to write the examinations for selection to the
Indian
Administrative
Service
or
the
Provincial Civil Service. He has his interest
in education; not in trade or business. He
wants to become an Officer. The landlord's
daughter is already married. The landlord is
leading a luxurious life and has no need for
the demised shop to establish his business.
Also, the landlord is not capable of doing
business, of which he has no experience. He
has never been detailed by the Ordnance
Factory on jobs of sale and purchase of
clothes. The case that the landlord has made
out is a device to evict the tenant. Thereafter,
he would let out the shop on rent after
charging a big premium. The landlord's son is
not unemployed and his need neither genuine
nor bona fide. In the event the demised shop
is not vacated, the landlord would not face
any difficulty. By contrast, if the tenant is
evicted, she would suffer great hardship. The
business housed in the demised shop is the
only source of livelihood for the tenant and
members of her family. The tenant and her
family, if evicted, would be reduced to
penury. They would suffer greater hardship in
comparison to the landlord.

8. The tenant has earned goodwill at
the place, that is to say, the demised shop,
where she has been doing business. Her
husband has been assisting her in the
venture. He has no business of his own.
The landlord's assertions, to the contrary,
are incorrect. There is no other shop close
by or in the vicinity, that can be secured on
rent by the tenant. The shop, which the
landlord says belongs to Krishna Gopal and
claimed to be available on rent, is not being
offered for rent; or even for sale. The tenant
has searched for a shop in the entire Bazar,
but could find none. The landlord owns
other shops that are in his possession and if
he wants to set up business, he can utilize
one of those shops. It is also pleaded that
none of the tenant's daughters have
received education in Ghaziabad. Both of
them have read in Sudama Prasad Bal
Vidya Mandir, Shahjahanpur and one of
them has passed her Intermediate, whereas
the other has appeared in the examination
privately. The younger daughter of the
tenant is married. The elder is yet to marry.
The tenant's son is engaged in the job
selling building material at Bareilly (RetBajari). He does not own tankers, nor does
he offer them on rent for transportation. He
is financially not well off. It has been
admitted that the relationship of the tenant
and her son is not cordial. He is not in
possession of the tenant's house or any part
of it, as claimed. The tenant has asked on
these
pleadings
that
the
landlord's
application for release be dismissed.

9. The landlord in support of his case
filed by way of documentary evidence, a
photostat copy of the memorandum of
family settlement and photostat copy of the
map annexed to the memorandum dated
24.04.1998. These bear Paper Nos. 33 and
32, respectively. Further, an affidavit was
filed by the landlord, Shyam Sundar Gupta
in support of his case for release bearing
Paper No. 33B, another affidavit by PW-2
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
Manoj Kumar, Paper No. 33C, still another
by Shiv Prasad Gupta PW-3, Paper No.
33D and an affidavit of PW-4 Jagdish
Prasad, Paper No. 33E. Shyam Sundar
Gupta also filed his counter affidavit,
bearing Paper No. 92 and an affidavit of
Tushar Gupta, his son, Paper No. 94.

10. The tenant filed her own affidavit,
bearing Paper No. 77, besides that of
Ashok Kumar Gupta, Paper No. 85 and that
of Alok Kumar, Paper No. 86. In addition,
affidavit of one Vinod Kumar Singh
Tanwar was also filed, Paper No. 87.
Ashok Kumar Gupta also filed a counter
affidavit, bearing Paper No. 96.

11. The Prescribed Authority framed
the followings issues (translated into
English from Hindi):

(1) Whether the applicant's case
is premature?

(2) Whether there is relationship
of landlord and tenant between parties?

(3) The issue of bona fide need.

(4) The balance of comparative
hardship/ if in the event of release of the
demised shop (or refusal), which party
would suffer greater hardship?

12. The Prescribed Authority held that
the release application was not premature,
because on the date it came up for
determination, the period of lease that
could be the maximum extension, that is to
say, up to 27.11.2017, was over. About the
relationship of landlord and tenant between
parties, it was held in favour of the landlord
on the tenant's admission. The issue of
bona fide need was answered for the
landlord upon evaluation of evidence led
by both sides and so was the comparative
hardship. The release application was
allowed by the Prescribed Authority vide
judgment and order dated 18.04.2018,
ordering the tenant to deliver possession of
the demised shop to the landlord within
three months, failing which the landlord
would have the right to recover the same
through process of Court. This order
carried the usual direction to the landlord to
pay two years' rent within 45 days to the
tenant. The order passed by the Prescribed
Authority was questioned in appeal under
Section 22 of the Act, which was rather
unconventionally nomenclatured as a Civil
Appeal, before the Court of the District
Judge, Shahjahanpur. It was assigned Civil
Appeal No. 33 of 2018 and heard by the
District Judge, sitting as the Appellate
Authority under the Act. The District
Judge,
by
her
judgment
and
order
impugned dated 24.12.2018, dismissed the
appeal and affirmed the order passed by the
Prescribed Authority.

13. Dissatisfied with the orders of
release passed by the two Courts below, the
tenant has instituted the present writ
petition
under
Article
226
of
the
Constitution.

14. Notice pending admission was
issued on 12.03.2019 and stay of eviction
was granted on the condition of deposit of
rent/ damages at the rate of Rs. 5000/- per
month with effect from the month of
March, 2019. Pending admission, parties
have exchanged affidavits. Later on, the
petition was formally admitted to hearing,
which proceeded forthwith and judgment
was reserved.

15. Heard Mr. Kshitij Shailendra,
learned Counsel for the tenant and Mr.
Utpal Chaterjee, Advocate along with Mr.
Shireesh
Gopesh,
Advocate,
learned
Counsel appearing on behalf of the
landlord.
11 All. Smt. Kusum Gupta Vs. Prescribed Authority/Civil Judge (Sr. Div.), Distt. Shahjahanpur &
 Ors.
1053

16. Mr. Kshitij Shailendra, learned
Counsel for the tenant has extensively
argued on the issue that the release
application was premature when made,
because the term of the lease had not come
to an end by that time. He further submits
that it was not stricto sensu a lease for a
fixed term, since it carried an initial term of
ten years, renewable for another ten years
twice, at the expiration of the initial period
of lease or the term first extended. This
submission the learned Counsel for the
tenant has come up with in the context of
the provisions of Section 21(4) of the Act,
which read:

"Section 21. Proceedings for
release of building under occupation of
tenant.- (1) x x x x

(2) x x x x

(3) x x x x

(4) An order under sub-section
(1) or sub-section (1-A) or sub-section (2),
may be made notwithstanding that the
tenancy has not been determined:

Provided that no such order shall
be made in the case of a tenancy created for
a fixed term by a registered lease before the
expiry of such term.

........."

 (Emphasis by Court)

17. It is submitted by the learned
Counsel for the tenant that the landlord
instituted proceedings for release, moving
the application before the Prescribed
Authority in the month of April, 2011. The
registered
lease
was
executed
on
27.11.1987 with a right to the tenant to ask
for extension for a period of ten years after
the initial term was over and a further right
to again ask for a ten years' renewal, when
the first extension was over. The lease
would, thus, come to an end not before
26.11.2017. It is submitted that the Courts
below have misconstrued the terms of the
registered lease, particularly the Appellate
Court, when it has remarked that the lease
expired in the year 2007 and the release
application was filed after that date. This is
contrary to the terms of the lease deed as
well as the admission of the landlord,
where he says that the period of lease
expired on 26.11.2017. The attention of the
Court in this connection was invited to the
landlord's counter affidavit, Paper No. 92C,
where in Paragraph No. 9, the landlord has
averred
that
the
lease
deed
dated
27.11.1987 was for a fixed period of ten
years, renewable twice, each for a period of
ten years, and, accordingly, on 26.11.2017,
the tenancy would come to an end by efflux
of time.

18. The learned Counsel for the tenant
has, on this point also, criticized the
judgment of the Prescribed Authority in
that, that she placed reliance upon the
decision of this Court in Manorama
Dubey vs. Dr. Santosh Kumar Khanna
and others, 2017 (3) ARC 468 regarding
the term of tenancy and a fortiori the
prematurity of action. It is urged that the
said judgment is not at all applicable here,
because that was a case of subsequent
purchase and the necessity of notice by the
subsequent purchaser in terms of the first
proviso to Section 21.

19. The learned Counsel for the
landlord, on the other hand, has submitted
that the period of tenancy/ lease fixed by
the registered sale deed dated 27.11.1987
was a term of ten years, extendable twice
for the same period, that is to say, a total
period of 30 years, with the consent of the
landlord alone. It is urged that Radhey
Shyam Gupta, the landlord's father, who
had let out the demised shop passed away
on 22.12.1997. After family settlement, the
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
demised shop fell to the landlord's share.
He has been attorned as the landlord by the
tenant. It is urged that right from the year
1997 till date, the landlord has never
consented to the extension of the tenancy in
accordance with the registered lease deed.
In this connection, Mr. Utpal Chaterjee has
drawn the Court's attention to Clause 2 of
the lease at Page 90 of the paper-book and
submits that there is no evidence about the
two further renewals for ten years, in terms
of the covenant for renewal carried in the
registered lease deed. As such, the term of
the lease expired on 26.11.1987 and the
release application moved in the year 2011,
is not premature at all.

20.

This
Court
has
carefully
considered the submissions advanced by
the learned Counsel appearing for both
parties,
perused
the
lease
deed,
in
particular, and the record.

21. In order to appreciate the
contention of the parties, the terms of
demise made through the registered lease
deed dated 27.11.1987 and Clause 2 of the
lessee's covenants, including Clause 5 of
the lessor's covenants must be referred to.
These read:

"THIS INDENTURE made at
Shahjahanpur, this 26th day of November
One Thousand Nine Hundred and Eight
Seven between Sri Radhey Shyam Gupta
S/o Late Shyam Lal Gupta, resident of
Mohalla
Sadar
Bazar,
Shahjahanpur
hereinafter called "The Lessor" (which
expression shall shall unless it be repugnant
to the context or meaning thereof deemed
to
include
his
respective
heirs
and
executors) of the FIRST PART; and
Srimati Kusum Gupta W/o Sri Ashok
Kumar R/o Moh. Bahadurganj, District
Shahjahanpur,
hereinafter
called
"The
Lessee" (which express shall unless it be
repugnant to the context or meaning thereof
be deemed to include her heirs and
executors)
of
the
OTHER
PART.
Witnesseth
that
for
and
on
the
consideration of rent hereinafter reserved
and of the convenant and conditions
hereinafter contained and on the part of the
Lessee to be paid, observed and performed
the Lessor to do hereby demise and lease
unto the Lessee a portion of the groundfloor of the residential building on the
Eastern
Side,
hereinafter
called
"the
premises" measuring 327.42 sq. ft. (15'-
10.5"x20'-5") more or less for the purpose
of shop bounded as under situated in BazarSadar Bazar, Shahjahanpur and of which
the Lessee will be in occupation TO HAVE
AND TO HOLD the said demised or
expressed so to be unto the Lessor for the
term of ten years YIELDING AND
PAYING therefor during the said term unto
the Lessee, the clear monthly rent of
Rs.800/- only (Rupees Eight Hundred
Only) to be paid monthly from the date of
handing over possession of the premises
intended to be leased to the Lessee, i.e. 27
Nov. 1987 after the execution of these
presents.
THE LESSEE'S CONVENANTS

1- x x x x

2- The Lessee will have option to
renew the said lease for a further period
upto the extent of another ten years at the
enhanced rent of 10% and upon the same
terms and conditions. The Lessee may
further opt to renew the lease for another
period of next ten years at a further
enhanced rent of 10% on the rent prevailing
at the time of expiry of the schedule lease
and upon the same terms and conditions,
except the clause for further renewal and to
this condition the Lessor will not be
entitled to object in any case;"
THE LESSOR'S CONVENANTS
11 All. Smt. Kusum Gupta Vs. Prescribed Authority/Civil Judge (Sr. Div.), Distt. Shahjahanpur &
 Ors.
1055

5- The Lessor shall grant renewal
of the said lease by mutual consent or
otherwise for a further period of ten years
and so on the terms and conditions as
mentioned in para No.2 of this lease the
Lessee's
convenants
as
aforesaid
mentioned."

22. A conjoint perusal of the terms of
the demise, initially created by the
registered lease deed and the relevant
covenants in the deed, in this Court's
opinion, make the time period of the
tenancy patent. The registered lease deed
creates a fixed term lease for a period of ten
years w.e.f. 27.11.1987. Upon its own term,
it would come to an end on 26.11.1997.
Clause 2 of the lessee's covenants and the
corresponding Clause 5 of the lessor's
covenants, empower the lessee to demand
extension of the lease twice for a period of
ten years; first on the expiry of the initial
term; and, second, on the expiry of the
extended term of ten years. A close reading
of Clause 2 of the lessee's covenant shows
that the lessee has a right to seek extension,
which the lessor by virtue of Clause 5 of
his covenants is bound to extend, because
the words ''mutual consent' occurring in the
lessor's covenant in Clause 5 is followed by
'or otherwise' and goes on to say that the
renewal is to be made on the terms and
conditions as mentioned in Clause 2.
Clause 2 gives an option to the lessee to ask
for renewal, which does not appear upon
any construction of the terms to admit of a
right of refusal by the lessor. The
consequence is that the registered lease
deed dated 27.11.1987 is indeed a fixed
term lease, carrying a covenant for renewal
in the terms indicated.

23. The legal position about a
covenant for renewal, which the lessee is
entitled to have as a matter of right, does
not mean that on the expiry of the initial
term of the lease fixed, the renewal comes
by ipso facto. Even if the lessor is bound to
grant renewal on the lessee's demand or
option, that renewal has to be granted in
accordance with law. Since it is a case of a
lease for a term exceeding one year, like
the lease originally made in terms of the
lease deed dated 27.11.1987, the deed of
renewal of lease for the next ten years also
has to be one made by a registered
instrument.
This
is
the
inescapable
conclusion upon a reading of the terms of
Section 107 of the Transfer of Property
Act, which say:

"107. Leases how made.-- A
lease of immoveable property from year to
year, or for any term exceeding one year, or
reserving a yearly rent, can be made only
by a registered instrument.

All other leases of immoveable
property may be made either by a
registered instrument or by oral agreement
accompanied by delivery of possession.

Where a lease of immoveable
property
is
made
by
a
registered
instrument, such instrument or, where there
are more instruments than one, each such
instrument shall be executed by both the
lessor and the lessee:

Provided
that
the
State
Government may, from time to time, by
notification in the Official Gazette, direct
that leases of immoveable property, other
than leases from year to year, or for any
term exceeding one year, or reserving a
yearly rent, or any class of such leases, may
be made by unregistered instrument or by
oral
agreement
without
delivery
of
possession."

24. This Court, in the view that we
take, holds that a covenant in the lease deed
providing for renewal does not ipso facto
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
extend the term of the lease. The view that
we take has the assurance of the holding of
the Supreme Court in Syed Sugara Zaidi
vs. Laeeq Ahmad (Dead) through LRs
and others, (2018) 2 SCC 21. In Syed
Sugara Zaidi (supra), it has been held by
their Lordships:

"14. The term in the lease
agreement for renewal of lease deed does
not ipso facto extend the tenure or term of
the lease. So far as the clause for renewal in
the lease deed is concerned, it was held in
DDA v. Durga Chand Kaushish [DDA v.
Durga Chand Kaushish, (1973) 2 SCC 825]
that such covenant only entitled a lessee to
obtain a fresh lease in accordance with and
in due satisfaction of the law governing the
making of leases. In the absence of renewal
of rent agreement, in our considered view,
the possession of the respondent-tenants in
the demised premises has become unlawful
and they are liable to be evicted."

25. There is another feature about the
covenant of renewal in this case. It
provides for an automatic escalation of rent
by 10% of the monthly rent payable on
each event of renewal. There is nothing on
record to show that rent was ever enhanced
from that initially fixed in the sum of
Rs.800/- per month; and even if it was,
there is no evidence to show that there was
ever executed a deed of renewal of lease
for a further term of ten years in terms of
the covenant for renewal. This Court is,
therefore, of opinion that the term of the
registered lease deed dated 27.11.1987
expired on 26.11.1997. There was no
renewal of the lease made in accordance
with law, even though the tenant had a right
to claim it and the landlord was bound to
grant it in terms of the covenants of the
lessor and the lessee, carried in the
registered lease deed. The term of the lease
deed, thus, came to an end on 26.11.1997.
Under the general law, the tenant would
then continue as a tenant at sufferance and
since the Act applies, she would be a
statutory tenant under it. There is, thus, no
force in the contention of the learned
Counsel for the tenant that the release
application was premature. For reasons,
very different than those that have weighed
with the Courts below, this Court concurs
in the conclusion reached on the aforesaid
issue by them.

26. The next point to be considered is
whether the findings of the two Courts
below on the issue of the bona fide need of
the landlord is vitiated on account of
perversity, manifest illegality or nonconsideration of material evidence.

27. It is submitted by the learned
Counsel for the tenant that the findings
recorded by the Courts below on the issue of
bona fide need are perverse and it is a case
where the landlord had not approached the
Prescribed Authority with clean hands. It is
urged that his claim was based upon gross
concealment of facts, particularly with
respect to his status, availability of heavy
funds with him, his monthly income, income
and status of his sons and wife, as well as the
existence of two shops, located to the west of
his residential premises, that form part of the
same building, that houses his residence. It is
submitted that these shops were let out by the
landlord
after
his
retirement.
Learned
Counsel for the landlord has refuted the
aforesaid submissions and said that it is up to
the landlord to decide, which of the tenanted
accommodation that he owns, he wishes to be
released for the fulfillment of his bona fide
need.

28. Upon hearing learned Counsel and
perusing the impugned judgments as well
11 All. Smt. Kusum Gupta Vs. Prescribed Authority/Civil Judge (Sr. Div.), Distt. Shahjahanpur &
 Ors.
1057
as the records, what this Court finds is that
the primary inquiry to be made on the
question of bona fide need is to determine
whether the need set up by the landlord is
an existing need for himself or a member of
his family. The need that has been set up
here is for the landlord himself and his
unemployed son, Tushar to set up a retail
outlet dealing in clothes, cosmetics etc. The
landlord's need that has been made the
basis of the case for release is that post
retirement, he needs an occupation for
himself to keep himself busy and further
for the augmentation of his income. The
coupled need for his son is to establish the
young man in business, training him along
the way so that it becomes an independent
source of livelihood for him. Now, neither
of the two needs, under the circumstances,
can be said to be unreasonable or fanciful.
The Courts below have found that the
landlord's son, Tushar has earned his
M.Com. decree, pending proceedings and
what appears is that when proceedings
commenced
before
the
Prescribed
Authority,
Tushar
had
passed
his
intermediate. By the time, proceedings
before the Authority of first instance
reached terminus, Tushar had passed his
M.Com. The Courts below have not found
Tushar to be engaged in any gainful and
stable employment. According to the
tenant's case also, Tushar, after passing his
M.Com., is engaged in offering tuitions and
coaching, that yields him Rs. 40,000/- per
month. Tuition and coaching sans evidence
of proceeds from that pursuit, is the most
flimsy pretext to show an educated man or
woman to be gainfully employed. The
Courts below have not believed this
engagement of Tushar to be gainful or
yielding or even existing. There is no
reason for this Court to take a contrary
view in the absence of some material
evidence that the Courts below have
omitted to consider on this point. The
landlord can certainly seek release of any
premises that he owns, in the occupation of
a tenant, to settle an adult member of his
family in business, trade, occupation or
profession,
utilizing
the
tenanted
accommodation. The need for provision of
occupation to an adult member of the
landlord's family is a good ground to
support a case of bona fide need, urged by
the landlord under Section 21(1)(a) of the
Act. In this connection, reference may be
made to the decision of this Court in Dr. K.
Gopal vs. Smt. Sudarshan Devi Bhatia,
2012 (92) ALR 364, where it has been
held:

"56. It is not possible to accept
this submission of learned counsel for the
petitioner. It is no doubt true that the
husband and the two sons of the landlady
are engaged in the business of silver
ornaments from the house situated at Kali
Thatheran Chowk Bazar, Mathura, but the
documents on record filed by the parties
indicate that the business was being run in
the name of the elder son of the landlady.
The landlady had filed the application for
release of the disputed shop as she wanted
to establish her younger son Pankaj in
independent business. It cannot be said that
such a need is not a bonafide need even if
Pankaj was actually assisting his father and
his brother in the business from the
residential house. This is what has been
observed by the Supreme Court in
Akhileshwar Kumar v. Mustaqim, AIR
2003 SC 532 which has been relied by the
Appellate Court and the observations are:-

"3. In our opinion, the approach
adopted by the High Court cannot be
countenanced and has occasioned a failure
of justice. Overwhelming evidence is
available to show that the plaintiff No. 1 is
sitting
idle,
without
any
adequate
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
commercial activity available to him so as
to gainfully employ him. The plaintiff No.
1 and his father both have deposed to this
fact. Simply because the plaintiff No. 1 is
provisionally assisting his father in their
family business, it does not mean that he
should never start his own independent
business. What the High Court has
overlooked is the evidence to the effect,
relied on by the trial Court too, that the
husband of plaintiff No. 4, i.e. son-in-law
of Ram Chandra Sao, was assisting the
latter in his business and there was little left
to be done by the three sons."

29. To the same effect is the holding
of
this
Court
in
Kishore
Kumar
Chaurasia vs. Durga Devi, 2016 (2) ARC
642 and that of the Uttarakhand High Court
in Gyan Prakash vs. Ram Kumar Goyal,
2017 (1) ARC 413.

30. The other limb, on which the case
of bona fide need is urged by the landlord,
is
about
his
own
occupation
and
augmentation of income.