# Sri Natthoomal v. A.D.J., Mathura & Ors

- **Citation:** (2022) 11 ILRA 1071
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-17
- **Case number:** Writ-A No. 57399 of 2008
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-natthoomal-v-a-d-j-mathura-ors-47956
- **Pages:** 14

## Headnote

Civil Law - Constitution of India - Article
226, - U. P. Urban Building Regulation of
Letting, Rent and Eviction Act, - Sections
21, 21(1)(a) & 22 - Landlord's bona fide need
- demised shop - which was occupying by the
tenant at a measly rent of Rs. 70/- since long
term - proceeding for vacating the tenant on
account of the bona fide needs - Landlord wants
to establish his one of sons in independent
business - trial court decreed the suit in favour
of landlord - in appeal set-aside - Writ Petition -
issue of 'Comparative Hardship' discussed - the
bona fide need cannot be presumed, but once
that is established, the difficulty faced by the
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
tenant alone cannot defeat the landlord's bona
fide need - held, 'comparative hardship' ought to
be answered in favour of the landlord and
against the tenants - 'Comparative Hardship' is
not evenly balanced and lies in favour of the
landlord - Appellate court is manifestly illegal,
being based on irrelevant consideration and the
result of a perverse approached - impugned
judgment of the appellant court deserve to be
quashed - prescribed authority restored - writ
petition allowed - direction issued accordingly
for vacating the demised shop within 15 days.
(Para - 14, 35, 39, 40)

Appeals/petitions are disposed of. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,864 of 49,437. This is a partial read: ask again with offset=39864 for what follows._

11 All. Sri Natthoomal Vs. A.D.J., Mathura & Ors.
1071
deed dated 13.11.2017, a copy whereof has
been annexed, and that he can utilize the
said property to establish his clinic. It is a
well settled principle that the tenant cannot
dictate to the landlord even if he has other
property, the one he chooses to establish
his business or profession. That apart, the
property that has been purchased in the
year 2017 appears to be residential
property, which may not be suitable for a
clinic or may be contrary to the local
authorities' regulations as well, regarding
residential and commercial user. The facts
that have been noticed in the last part of our
judgment have primarily been looked into
for the purpose of considering whether this
Court should exercise its extraordinary
jurisdiction to interfere with the concurrent
findings of the two Courts of fact below.
The facts additionally noticed, leave no
manner of doubt in this Court's mind that
the tenant is not entitled to relief in the
exercise of our equitable jurisdiction under
Article 226 of the Constitution.

34. This petition fails and is
dismissed.

35.

The
interim
order
dated
08.04.2022 is hereby vacated.

36. However, considering the facts
and circumstances, the tenant-petitioners
are allowed six months time to handover
peaceful and vacant possession of the
shop in dispute provided they execute an
undertaking
before
the
Prescribed
Authority,
Aligarh,
embodying
the
following terms within one month of
date:

(1) The tenants shall handover
peaceful and vacant possession of the
demised shop to the landlady-respondent
no.1 on or before 03.05.2023.

(2) During the period of six
months that they remain in occupation, they
will not sublet the shop, damage or
disfigure it in any manner whatsoever.

37. In the event, an undertaking, as
above directed, is not filed before the
Prescribed Authority by the tenant within
the time allowed or undertaking is violated,
the release order shall become executable
forthwith.
----------
(2022) 11 ILRA 1071
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2022

BEFORE

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

Writ-A No. 57399 of 2008

Sri Natthoomal ...Petitioner
Versus
A.D.J., Mathura & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arun Kumar Vishwakarma, Sri Neeraj
Srivastava, Sri Atul Dayal (Sr. Advocate)

Counsel for the Respondents:
Sri Rahul Sahai, Sri Rajesh Gupta, Sri Satish
Pandey

Civil Law - Constitution of India - Article
226, - U. P. Urban Building Regulation of
Letting, Rent and Eviction Act, - Sections
21, 21(1)(a) & 22 - Landlord's bona fide need
- demised shop - which was occupying by the
tenant at a measly rent of Rs. 70/- since long
term - proceeding for vacating the tenant on
account of the bona fide needs - Landlord wants
to establish his one of sons in independent
business - trial court decreed the suit in favour
of landlord - in appeal set-aside - Writ Petition -
issue of 'Comparative Hardship' discussed - the
bona fide need cannot be presumed, but once
that is established, the difficulty faced by the
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
tenant alone cannot defeat the landlord's bona
fide need - held, 'comparative hardship' ought to
be answered in favour of the landlord and
against the tenants - 'Comparative Hardship' is
not evenly balanced and lies in favour of the
landlord - Appellate court is manifestly illegal,
being based on irrelevant consideration and the
result of a perverse approached - impugned
judgment of the appellant court deserve to be
quashed - prescribed authority restored - writ
petition allowed - direction issued accordingly
for vacating the demised shop within 15 days.
(Para - 14, 35, 39, 40)

Appeals/petitions are disposed of. (E-11)

List of Cases cited: -

1. Vijay Kumar Gupta & anr. Vs Smt. Sumitra
Devi & ors., 2014 (1) ARC 371

2. Ragavendra Kumar Vs Firm Prem Machinary
& Co., (2000) 1 SCC 679

3. Ganga Narain Gupta Vs Sheetala Prasad,
2006 (65) AllLR 587

4. Shambhu Nath Vs III A.D.J. & ors., 2014 (1)
ARC 372

5. Sarla Ahuja Vs United India Insurance Co.
Ltd, (1998) 8 SCC 119

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a landlord's writ petition,
arising out of proceedings for release 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').

2. The facts giving rise to this writ
petition are these:

Natthoomal
son
of
Daulatram
instituted
proceedings
against
Giriraj
Dharan son of Surajbhan for release under
Section 21(1)(a) of the Act, with the
allegations that he is the owner and
landlord of a shop, bearing Municipal
Premises No. 127/82-A, Kachchi Sarak,
Shahganj
Darwaza,
District
Mathura.
Giriraj Dharan is a tenant in the said shop
at the rate of Rs.70/- per month, excluding
taxes. Giriraj Dharan has been in arrears of
rent since 01.08.1999. Natthoomal, who
shall hereinafter be called 'the landlord', has
a shop located to the south of the shop in
the tenancy occupation of Giriraj Dharan.
The shop in Giriraj Dharan's tenancy shall
hereinafter be called 'the demised shop'.

3. The landlord carries on the
business of a jeweller in his shop aforesaid,
dealing in silver jewellery. Along with the
landlord, one of his sons, Rupesh Kumar
also does business in the same shop as the
landlord. The landlord's elder son, Pankaj
and the one younger to him, Rupesh Kumar
are married. Pankaj has been blessed with
two
children,
but
has
no
gainful
occupation. The family's peace for the
landlord has been a casualty on account of
disputes between the womenfolk, all of
which has made it difficult for Pankaj to
carry on business in the same shop as the
landlord. The landlord has asserted that the
shop where he does business is not big
enough to take care of the requirements of
the landlord and his two sons, all at once.
The landlord's son Pankaj has good
experience of a jeweller's business in silver
ornaments and he can carry on this
business. The landlord has the necessary
capital to set up his son Pankaj in
independent business. The landlord has
another shop, bearing No. 127/ 82-C,
wherein there is an old tenant, Mohan Lal
in occupation. Apart from these three
shops, the landlord does not have any other,
where he may set up his son in independent
business. It is pleaded by the landlord that
he requires the demised shop to be released
on account of the bona fide need that he has
11 All. Sri Natthoomal Vs. A.D.J., Mathura & Ors.
1073
for the said shop in order to establish his
son Pankaj in independent business.

4. Apart from Pankaj, the landlord has
two other sons, Rupesh and Ghanshyam.
Ghanshyam is not married so far. He has
discontinued his studies and is otherwise
competent to establish his own business.
Giriraj Dharan, the tenant in the demised
shop, has another tenanted shop, situate at
Bairagpura,
Mathura.
Giriraj
Dharan
primarily carries on his business in the shop
at Bairagpura. In addition, Giriraj Dharan
has in his ancestral home, which is located
close-by to the demised shop, three vacant
shops of his own. In the event the demised
shop is released, the tenant would not
suffer greater hardship compared to what
the landlord would, if the demised shop
were refused to be released. It is also
averred by the landlord that he conveyed
his bona fide need to Giriraj Dharan, asking
him to vacate the shop, but he declined.
Compelled by his refusal, the landlord
instituted
proceedings
for
release
as
aforesaid through the application under
Section 21(1)(a) of the Act on 04.01.2002
before the Prescribed Authority. The
release application was registered as P.A.
Case No. 3 of 2002 on the file of the
Prescribed Authority.

5. Giriraj Dharan put in a written
statement, contesting the landlord's case for
release. It was pleaded by him that the
landlord and all his sons carry on business
in silver in the shop located to the south of
the demised shop. Their business is of
trading in silver. It has been asserted by
Giriraj Dharan that no cause of action has
arisen to the landlord to seek release of the
demised shop. He has no need for the same
and has sufficient property. He has a big
shop, where the landlord and his sons do
business in silver ornaments. The landlord's
sons make these ornaments and supply
them- a kind of business, called Desawari.
The nature of their business is not retail.
They supply their wares to different places.
The landlord and his sons are income tax
payers. They are rich men. The landlord's
son has a Saari Printing Works, located at
Saraswati Kund, Mathura. The demised
shop
is
unfit
for
the
purpose
of
manufacturing business in Saaris that the
landlord's son undertakes. It is asserted that
the landlord's need set up is mala fide. The
landlord has come up with the application
for release, because he demanded enhanced
rent at the rate of Rs.300/- per month,
which the tenant Giriraj Dharan refused. It
is on that account that the landlord has
instituted the present proceedings for
release, without any bona fide need, on
wrong facts and non-existent grounds. It is
also averred that the landlord and his sons
buy wares from Giriraj Dharan on credit,
leading to a substantial sum of money
falling due, which the landlord owes to
Giriraj Dharan. The latter asked the
landlord to adjust his outstandings against
the rent due, but the landlord wants to
increase the rent. Giriraj Dharan carries on
in the demised shop his tea shop, where he
sells,
besides
tea,
biscuits,
snacks,
cigarettes etc., in order to earn his
livelihood. It was averred that in case he is
evicted
from
the
demised
shop
in
consequence of the release order, he would
be ruined and his family starve to death. It
was also pleaded that in the vicinity, there
is no such shop which Giriraj Dharan could
take on rent. It was averred further that the
tenant had secured on rent a godown in the
name of his son from Thakur Dauji
Maharaj, where he stores his stock. The
said premises are not a shop. Giriraj
Dharan's
ancestral
house
has
been
partitioned long back and no shop has
fallen to his share. The landlord and his
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
sons are into the business of manufacturing,
where they have 8-10 servants. The
landlord and his sons do not have the need
to retail anything.

6. It was also averred in the written
statement that Giriraj Dharan has been
served with a notice dated 19.11.2002 by
registered post by the landlord's brother,
Mahesh Chandra, informing Giriraj Dharan
that Mahesh Chandra was the owner of the
rear part of the demised shop, which had
fallen to his share in some partition. The
said notice had been replied to by Giriraj
Dharan through his Counsel. It was averred
that Mahesh Chandra has held out to be a
co-landlord of the demised shop, but the
landlord has not impleaded him as a party.
For
the
said
reason,
the
landlord's
application for release was not properly
framed and not maintainable.

7. Pending the release application, an
application for impleadment was filed by
Govind Saran Mittal, Giriraj Dharan's
brother on 30.08.2005. He alleged that he
too was a tenant in the demised shop. The
landlord objected to the impleadment,
saying that it was motivated by dilatory
tactics. The application was, however,
allowed by the Prescribed Authority, in
consequence whereof Govind Saran Mittal
came to be impleaded as opposite party
no.2 to the release application.

8. Govind Saran Mittal filed his
separate written statement. It is Mittal's
case that the landlord had no cause of
action against him. The landlord, in
collusion with Giriraj Dharan, has brought
these release proceedings, which are
collusive and intended to evict Mittal. It is
pleaded that Giriraj Dharan is a brother-inlaw of the landlord's and the two have
conspired to file a compromise in Court
behind Mittal's back. It is Mittal's case that
the demised shop is a very old tenancy.
Long ago, the owner and the landlord of the
demised shop was Smt. Dulari wife of
Manohar Lal and Mittal's father and that of
Giriraj Dharan (the two being brothers) was
the tenant. Prior to their father, their
grandfather was the tenant. The family
have been in successive tenancy occupation
of the demised shop since before the year
1957. After Smt. Dulari, Shrinath Dass
Gayasiram became the owner and landlord
of the demised shop. After Giriraj Dharan
and Mittal's grandfather passed away, their
father inherited the tenancy and became the
sole tenant of the demised shop. Shrinath
Dass Gayasiram executed a sale deed of the
demised shop in favour of Sri Daulat Ram,
the landlord's father and after Daulat Ram,
the landlord inherited the demised shop.
The tenancy in the demised shop is one
antedating the year 1957 and continuing
since the time of Giriraj Dharan and
Mittal's grandfather. Giriraj Dharan and
Govind Saran Mittal shall hereinafter be
referred to as 'the tenants', unless the
context requires an individual reference.

9. The tenants' father passed away on
02.10.1976 and upon his demise, all his
heirs have become tenants. The tenants'
father, Surajbhan also had two other sons,
Harish Chandra and Keshav Deo, who are
living away for some time. For the present,
the demised shop is in occupation of Giriraj
Dharan and Mittal, both of whom are
carrying on their respective business in the
said shop separately. The demised shop has
two doors/ outlets and, therefore, the
southern outlet is used by Mittal for his
shop selling food-grains, whereas the
northern door outlet is used by his brother,
Giriraj Dharan for his business of tea
vending etc. The demised shop has an
electricity connection and a meter installed
11 All. Sri Natthoomal Vs. A.D.J., Mathura & Ors.
1075
since the time of the tenants' father, in the
name of their other brother, Harish
Chandra. It is pleaded that the landlord has
no need for the demised shop. He has
substantial properties. The landlord has a
big shop, where he does his business. The
other shop, which is said to be in the
tenancy occupation of Mohan Lal, is a
matter of mere show, in order to harass the
tenants. The shop, which is said to be in
Mohan Lal's tenancy occupation, was
earlier in the tenancy occupation of one
Mool Chand Khandelwal. The said shop
was vacated and after Mool Chand
Khandelwal moved out, Mohan Lal was
shown to be a sham tenant there. Mohan
Lal himself has substantial property and
does not need the shop that is said to be in
his occupation. The landlord is an income
tax payer. All his sons and daughters-inlaw are income tax payers. They are a rich
family. The landlord has one Saari Printing
Works at Saraswati Kund, Mathura. The
landlord's son Pankaj is engaged in
manufacturing and supplying boxes for
sweets to Brijwasi Mithaiwale on a large
scale. The landlord and all his sons have
flourishing business, which yields them
good profit. The landlord and his sons have
acquired properties, utilizing their wealth.

10. It has been emphasized that
Pankaj has purchased a house (Kothi) in the
name of his wife, Smt. Kavita, situate at
Guru Kripa Masani Road, Mathura. That
house is worth Rs.50 lakhs. There was
house-warming for the said property on
20.07.2007. The landlord pending the
proceedings has purchased another shop at
Guru Kripa, Masani Road, Mathura. It is
pleaded by Mittal that the tenants are in
occupation of the demised shop for the past
more than 50 years, that is to say, since the
time of their grandfather and have acquired
goodwill in business. Mittal has also said
that he has no alternate source of livelihood
and in event of release, would suffer
greater hardship than the landlord in case of
refusal.

11. In the replication filed on behalf
of the landlord, it is said that the Act
applies and Giriraj Dharan is a tenant prior
to enforcement of the Act. Giriraj Dharan
has set up his brother in the present
proceedings in order to delay the course of
law. Both the brothers have a common
cause. The landlord has denied the factum
of his son Pankaj purchasing a house in his
wife's name at Masani Road, or the fact of
acquisition of a shop pending proceedings.
The fact that the landlord's son has a Saari
Printing Works has also been denied, as
also the fact that his son had, had an
income tax raid. It is pleaded in their
replica that Mittal has wrongly claimed that
his relations with his sons are estranged. To
the contrary, Mittal stays with his sons and
has his own flour mill (Aata Chakki). He
operates that flour mill along with his elder
son, whereas his younger son does another
business. The landlord has filed his
evidence on affidavit, which comprises the
affidavits
of
Ashok
Kumar
Sharma,
Mukesh, Tulsiram, Girish Chandra and Dau
Dayal, besides documentary evidence, that
includes a sale deed, copies of municipal
assessments and photographs. The tenant
has given affidavits of Dau Dayal,
Tulsiram, Girish Chandra and Giriraj
Dharan. Giriraj Dharan has filed four
affidavits in all. Mittal has filed affidavits
of a number of witnesses, like those of
Rambabu Sharma, Hiralal, Neeraj, Dileep,
Bhagwandas
and
Shiv
Kumar.
Documentary evidence too has been
adduced on behalf of the tenants, details of
which are listed in the judgments of the
Courts below. No useful purpose would be
served by recapitulating the list, except
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
what is relevant. The relevant evidence
shall be referred to during the course of this
judgment.

12. The Prescribed Authority framed
two issues and on the basis of it,
determined the application for release.
These read (translated into English from
Hindi):

(1) Whether the applicant has a
bona fide need for the shop in dispute for
his son Pankaj's business?

(2) Whether in case of the
demised shop not being released, the
applicant will suffer greater hardship than
what the opposite party would face, if the
property is released?

13. The Prescribed Authority has
looked carefully into the evidence of
parties, including the documents and
affidavits. The Prescribed Authority has
disbelieved a few of the witnesses, like Dau
Dayal, Tulsiram and Girish Chandra, who
have given contradictory affidavits about
the business and bona fide need of parties.
The Trial Court has found that the landlord
has, according to the municipal assessment,
a house and three shops in his ownership.
One of these shops is the demised shop. In
one of the shops, Mohan Lal is shown as
the tenant, whereas the third is in the
landlord's occupation. The Trial Court has
remarked that the contention of Mittal that
Mohan Lal's shop has not been allotted in
his favour, which the landlord can get
vacated, is not tenable, inasmuch as the
issue in the present proceedings is not
about the shop in Mohan Lal's tenancy, but
the demised shop. The landlord has moved
the present release application, relating to
the demised shop, wherein Giriraj Dharan
is the tenant. It is up to the landlord to
decide which shop he wants to be released
for the satisfaction of his bona fide need.
The Prescribed Authority has remarked that
the release of the demised shop is sought
for the purpose of settling the landlord's
son, Pankaj in independent business. It has
been held that the fact is not in dispute that
in the past, Pankaj would do business along
with his father in the same shop. The
landlord has funds to set up his son in
independent business. The Trial Court has
opined that the landlord has a right to set up
any adult member of his family in
independent business, which qualifies as
bona fide need. The case about Pankaj
being engaged in the business of Saari
Printing
and
manufacture
of
sweets
packaging boxes has not been accepted by
the Prescribed Authority, in the absence of
any documentary evidence to prove the
factum
of
those
enterprises
being
undertaken by Pankaj. The Prescribed
Authority has, accordingly, found on the
issue of bona fide need for the landlord.

14. On the other issue of comparative
hardship, the Prescribed Authority has also
carefully looked into the evidence and
opined that by merely moving applications
for allotment, it cannot be said that the
tenant
has
made
efforts
to
secure
alternative
accommodation
pending
proceedings. That is one of the limbs of the
findings, on the basis of which the
Prescribed Authority has held on the
question of comparative hardship in the
landlord's favour. The Prescribed Authority
has remarked that bona fide need cannot be
presumed, but once that is established, the
difficulty faced by the tenant alone cannot
defeat the landlord's bona fide need. It has
been held that on the basis of evidence on
record, it is apparent that the tenants have
purchased properties pending proceedings
and
concluded
that
on
an
overall
assessment
of
evidence,
comparative
11 All. Sri Natthoomal Vs. A.D.J., Mathura & Ors.
1077
hardship ought to be answered in favour of
the landlord and against the tenants.

15. In conclusion, the Prescribed
Authority allowed the release application
and directed the tenants' eviction within a
period of one month, with directions to the
landlord to pay the tenants two years' rent
towards
compensation.
The
release
application as aforesaid, was allowed by
the Prescribed Authority vide judgment and
order dated 19.03.2008.

16. Aggrieved by the judgment and
order passed by the Prescribed Authority,
Mittal alone appealed to the District Judge,
Mathura under Sectioin 22 of the Act. The
appeal came to be registered on the file of
the District Judge as P.A. Appeal No. 10 of
2008. The Additional District Judge, Court
No.8, Mathura, before whom the appeal
came up for hearing, allowed it vide
judgment and order dated 14.08.2008, set
aside the Prescribed Authority's judgment,
reversed it and dismissed the landlord's
release application. The judgment and
order dated 14.08.2008 passed by the
Additional District Judge, Court No.8,
Mathura shall hereinafter be referred to as
'the impugned order'.

17. Aggrieved by the impugned order,
the landlord has instituted the present writ
petition.

18. Notice pending admission was
issued on 07.11.2008 and over the course
of years that the petition has remained
pending, parties have exchanged affidavits.
A counter affidavit has been filed by Giriraj
Dharan also, though he never appealed the
order releasing the demised shop passed by
the Prescribed Authority. Mittal, who
preferred the appeal, has, of course, filed a
separate counter affidavit. A rejoinder
affidavit each to the two counter affidavits
filed on behalf of Giriraj Dharan and
Mittal, who are respondent nos. 2 and 3 to
the writ petition, have been filed by the
landlord. Post exchange of affidavits, the
petition was admitted to hearing, which
proceeded forthwith.

19. Heard Mr. Atul Dayal, learned
Senior Advocate assisted by Mr. Neeraj
Srivastava, Advocate appearing on behalf
of the petitioner and Mr. Satish Pandey,
Advocate holding brief of Mr. Rahul Sahai,
learned Counsel for respondent no. 3. Mr.
Rajesh Gupta, Advocate has appeared on
behalf of respondent no. 2, but says that he
has no instructions.

20. The Appellate Court, in reversing
the findings of the Prescribed Authority,
has
largely
taken
into
consideration
irrelevant evidence. The learned Judge has
opined that for the purpose of determining
the landlord's case of bona fide need, it has
to be determined whether his son, Pankaj
has some independent business, or as the
landlord says, the son does business with
the landlord together, leading to bickerings
in the family. The learned Judge has then
remarked that it has to be determined
whether Pankaj is indeed unemployed. The
Appellate Court has remarked that there are
on record affidavits of Bhagwandas and
Shiv Kumar, that say that Pankaj is
engaged in the business of manufacturing
packaging boxes for sweets on a large scale
and further state that Pankaj and his wife
are income tax payers. The two witnesses
have also said that in their presence, Pankaj
and his wife have faced proceedings of
survey by the Income Tax Department. The
learned Judge has remarked that the
landlord has rebutted the fact about Pankaj
and his wife being income tax payers, as
also that about the alleged proceedings
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
against
him
by
the
Income
Tax
Department, but Pankaj has not filed his
own affidavit, denying the fact. The
Appellate Court has inferred that nondenial by Pankaj himself shows that the
landlord's son did not have the courage to
deny the fact on oath and take the risk of
perjuring himself. It has been observed that
the landlord denying the fact of his son
being an income tax payer or accepting it,
is of no consequence, unless Pankaj himself
came forward with his stand. It has been
held that since Pankaj has not filed his
affidavit rebutting the allegations, the
inference is that he is an income tax payer.
It has further been remarked that an income
tax payer is not a person of ordinary means.
Such a man is either one who draws a high
salary or has flourishing business. This
would be the necessary inference in law,
according to the Appellate Court, from the
facts found, as aforesaid.

21. There is another finding recorded
to the effect that the assertion on behalf of
the tenants that Pankaj has purchased a
shop in Hari Kunj, has also not been denied
on affidavit. The inference drawn is that
Pankaj has purchased a shop in Hari Kunj.
The conclusion drawn is that for Pankaj, to
settle down in business, the landlord has set
up his bona fide need, but the landlord's son
does not need the demised shop, inasmuch
as the shop that Pankaj has purchased in
Hari Kunj is sufficient for his business
requirements.

22. It would be apposite to consider
the worth of the aforesaid findings recorded
by the Appellate Court, as referred to
hereinabove. The fact whether Pankaj is an
income tax payer or not, is no business of
the
Appellate
Court
to
investigate.
Assuming that Pankaj is an income tax
payer, the landlord has a right to set up an
independent business for his son or
augment his business, independent from his
own. It is not the tenants' right to question
the landlord's bona fide need claimed for
his son's independent business by relying
on the son's income tax returns or those of
his wife. Normally, a person, who is
engaged in business like the tenants, say of
trade in silver together with his father, may
also earn enough to become an income tax
payer. The fact that a person is an income
tax payer is no index to infer that he has an
independent
business
of
his
own.
Moreover, the remarks of the Appellate
Court that an income tax payer is not an
ordinary parson, but a businessman with a
big turnover or a flourishing trade, are all
misplaced.

23. Payment of income tax is hardly a
parameter
to
infer
that
the
person
concerned/ member of the landlord's
family, for whom the business premises is
claimed to be needed bona fide for
independent business, already has an
existing business of his own. The Appellate
Court has not only taken into consideration
irrelevant evidence, but conjectured much
about the landlord's son being an income
tax payer. There is no evidence aliunde on
record to show that the landlord's son or his
daughters-in-law are income tax payers.
There is no document on record, like an
assessment order or return, to demonstrate
the fact that Pankaj is, in fact, an income
tax payer. The mere fact that Pankaj has not
denied the assertion about him being an
income tax payer through his personal
affidavit, cannot lead to the inference that
he is one. There is, after all, a denial of the
fact by the landlord that his son Pankaj is
not an income tax payer. It is the landlord
who has asked for the release of the
demised shop and he is well within his
rights to give evidence about the fact that
11 All. Sri Natthoomal Vs. A.D.J., Mathura & Ors.
1079
his son, for whose independent business he
requires the demised shop, is not an income
tax payer. The landlord's evidence cannot
be ignored as the Appellate Court has done.

24. Moreover, the affidavits, on the
basis of which it has been inferred that the
landlord's son is an income tax payer, are
those of one Bhagwandas and another Shiv
Kumar. It is not clear as to how these
persons, apart from saying that they have
witnessed some kind of income tax survey
proceedings against Pankaj, would know
that he is an income tax payer. There is no
evidence annexed to those affidavits, like
some
proceedings
of
assessment
or
assessment order to establish the fact.

25. Likewise, the finding that since
the assertion about Pankaj buying a shop in
Hari Kunj has not been denied on affidavit,
the fact stands proved, is equally flawed.
There is again no evidence to show, like a
sale deed, that such a shop has been
purchased by Pankaj. In the absence of any
independent evidence, no inference can be
drawn on the basis of a mere non-traverse
about a fact as positive as purchase of
another shop by the landlord's son. Even if
it be assumed that Pankaj has purchased
some shop out of his own resources or
whatever be the source, it is not for the
tenants to dictate to the landlord, where and
how the landlord should go about satisfying
his bona fide need to settle his son in
independent business. Even if the landlord
has more than one shop available to him,
the tenant nor the Court can say which shop
the landlord should utilize to satisfy his
son's business requirements. There is no
denying the fact that he is a matured man
with a family and there is no evidence
aliunde on record to show that Pankaj owns
a business of his own, except allegations on
affidavits. About the freedom of the
landlord
to
earn
his
livelihood
for
maintaining
himself
and
his
family
according to his choice, it was held by this
Court in Vijay Kumar Gupta & another v.
Smt. Sumitra Devi & others 2014 (1) ARC
371:

7. The above referred authorities
though, were in the context of residential
accommodation, but the principle that the
landlord is the master of arranging his own
affairs applies not only in respect to his
residential accommodation but also the
manner and method etc. of earning his
livelihood for maintaining himself and
family.

8. In Ragavendra Kumar Vs.
Firm Prem Machinary & Co. (2000) 1
SCC 679, the Court said that landlord is
best judge of his requirement for his
residential or business purpose and he has
complete freedom in the matter.

26. The other finding, on the basis of
which the Appellate Court has reversed the
order of the Prescribed Authority, is about
the existence of another shop available to
the landlord, wherein there is no lawful
occupant.

27. The next submission that the
Appellate Court has considered to find
against the landlord on the question of bona
fide need is based on the tenants' contention
that there are two other shops, apart from
the demised shop, bearing Shop Nos.
127/82B and 127/82C that are in the
landlord's possession. In addition, the
Appellate Court has also noticed the
tenants' assertion that there were two other
shops on the same premises that bore old
Nos. 1798D and 1798E, which fell to the
landlord's share. The Appellate Court, after
noticing the above contentions urged on
behalf of the tenants, has remarked that
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
these facts are admitted to parties. In our
opinion, the remark last mentioned is an
error apparent. There is no admission
brought to this Court's notice that Shop
Nos. 127/82B and 127/82C are in the
landlord's possession. This would also be
apparent from the next remark by the
Appellate Court, where it is said that the
shop, that is said to be in Mohan Lal's
tenancy, had for its original tenant, one
Mool Chand, from whom it was got
vacated and delivered possession of to
Mohan Lal. The shop bearing No. 127/82C
is, therefore, in the occupation of Mohan
Lal as a tenant, or as the Appellate Court
later on says, as an illegal occupant. It
cannot be said to be ''admittedly' in the
landlord's possession. It is particularly so
because the landlord says that Mohan Lal is
a
tenant
in
Shop
No.
127/82C,
notwithstanding
the
finding
of
the
Appellate Court that Mohan Lal is an
unlawful occupant in the shop under
reference. It cannot be said to be a fact
admitted to parties that Shop No. 128/82C
is in the landlord's possession.

28. The Appellate Court has then
looked into the successive quinquennial
assessment of house tax record to determine
about the existing tenants in the two other
shops, bearing Nos. 127/82B and 127/82C.
The tenancy in Shop No. 127/82C, where
Mohan Lal is claimed by the landlord to be a
tenant, has been particularly examined. The
Appellate Court has looked into the house tax
assessment record for the years 1970 to 1987,
bearing Paper No. 67-Ga, which shows the
profile of tenants in the demised shops and
the other shops that are the subject matter of
contention to judge the issue of bona fide
need. About the said assessment, the
Appellate Court has recorded a finding that in
one of the shops, Surajbhan is shown to be a
tenant and in the second, Mool Chand. In the
third, Pitambar Das and in the fourth, Kishori
Lal are recorded as tenants. Mohan Lal is not
recorded as a tenant in any of the four shops
mentioned in the assessment, all of which are
housed in the same premises as the demised
shop. It is then remarked by the Appellate
Court that Mohan Lal is found recorded in
Paper No. 99-Ga, which is a copy of the
house tax assessment from the year 1987 to
1993. Here, Mohan Lal has been shown
recorded as a tenant in Shop No. 1798/C.
There is a further comment about Paper No.
99-Ga/3 to the effect that in this assessment,
Mool Chand is not recorded as a tenant. From
these records of assessment, the Appellate
Court has drawn the conclusion that Shop
No. 127/82C was in the tenancy occupation
of Mool Chand up to the year 1987, and after
that, it was handed over to Mohan Lal. The
Appellate Court, with reference to the
provisions of the Act, has held that there can
be no valid tenancy without an allotment
order, except where it has been continuing
since prior to July, 1976. Since Mohan Lal
has admittedly come in in the year 1987,
without an order of allotment, he is not a
tenant, but an unauthorized occupant. The
shop must, therefore, be deemed to be vacant.
There is a further finding that in Paper No.
67-Ga-2, the municipal assessment records
for the years 1972 to 1987, neither Mohan
Lal nor Gopal Das are shown recorded as
tenants. Both these men have been recorded
after 1987. Since the two are in possession of
the two shops, according to the Appellate
Court, without an allotment order, with the
tenancy not traceable to a date prior to July,
1976, the shops in their possession must be
held to be in unauthorized occupation and,
therefore, deemed vacant.

29. The Appellate Court has gone on
to remark that the authority of this Court in
Ganga
Narain
Gupta
vs.
Sheetala
Prasad, 2006 (65) ALR 587, which says
11 All. Sri Natthoomal Vs. A.D.J., Mathura & Ors.
1081
that the landlord can ask anyone of his
various tenants to vacate one or the other of
the shops in tenancy occupation in order to
satisfy his bona fide need, and cannot be
compelled to ask a particular tenant to
vacate, would not apply to the facts here.
The reason assigned is that the other person
in occupation of another shop or premises
of the landlord must be a lawful tenant and
not an unauthorized occupant. This finding
is followed by a reversion to the fact earlier
found that the landlord's son Pankaj and his
daughters-in-law, being income tax payers,
would show that they are well established
in business and do not require the demised
shop, much less bona fide need it. In this
Court's opinion, the approach of the
Appellate Court is fundamentally flawed
and manifestly illegal on this limb of the
reasoning too. Once for a proposition of
law, it is not in dispute that the landlord can
choose from amongst the various tenants,
who are in occupation of different premises
or shops, against whom he wants to
proceed for release on the ground of bona
fide need, the fact that some other shop
occupied by another tenant, whom the
tenant says is in unauthorized occupation,
is not at all relevant.

30. The fact whether the other person
in possession of another shop belonging to
the landlord is an unauthorized occupant or
a lawful tenant, cannot be decided in
proceedings for release brought on the
ground of bona fide need, under Section
21(1)(a) of the Act. This can be done by
moving the Rent Control and Eviction
Officer, under Section 12/16 of the Act.
Also, in proceedings, where the question is
if the person in occupation of the other
shop, bearing No. 127/82C, is a tenant or
an unauthorized occupant, the affected
party has to be impleaded as a necessary
party and heard. That inquiry cannot be
made in the present proceedings that have
been brought for release of the demised
shop, in the occupation of the tenants. In
Mohan Lal's absence, behind his back,
without hearing him, in proceedings for
release under Section 21(1)(a) of the Act,
to hold that Mohan Lal is not a tenant, but
an unauthorized occupant, is a finding
beyond
the
scope
of
the
present
proceedings under Section 21(1)(a) of the
Act.

31. For the purpose of these
proceedings, the landlord asserts that
Mohan Lal is a tenant in another shop of
the landlord's and the fact has to be
accepted for Mohan Lal is in settled
possession over a long period of time. The
question about vacancy based on the day of
commencement of Mohan Lal's tenancy
cannot be inquired into in proceedings for
release under Section 21(1)(a) of the Act,
brought inter partes between the landlord
and the tenants.

32. Quite apart from these facts, the
law is fairly well settled that a landlord has
the right to expand his business and the
tenant or the Court cannot force him to
carry on in the same shop. When the case is
one of the landlord's needing additional
accommodation for his sons' business
requirement, which would include ex
hypothesi, the landlord's need to provide for
his sons' expansion of business, the
landlord cannot be denied the right to seek
release
of
additional
accommodation,
where he has a sitting tenant, whom he
wants to evict for the purpose. The
fundamental principle about the landlord's
right to expand his business being a ground
to support a case of bona fide need under
Section 21(1)(a) of the Act, has been
succinctly laid down by esteemed Brother
Manoj Kumar Gupta in Shambhu Nath v.
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
Third Additional District Judge and
others, 2014 (1) ARC 372 in the following
words:

11.............. A landlord has got a
right to expand his business and in case he
requires additional space for it, the need
cannot be said to be malafide. The tenant
cannot dictate terms to the landlords as to
how he should satisfy his need. The court
cannot act as a rationing authority and force
the landlord not to expand his business or
carry on in the same shop. In the above
context, it is worthwhile to quote the
following lines from the judgement of the
Supreme Court in Sarla Ahuja Vs. United
India Insurance Company Ltd, (1998) 8
SCC 119:-

".........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.