# Sri Pradeep Kumar Rastogi v. The XVI A.D.J., Meerut and others

- **Citation:** (2001) 1 ILRA 365
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-pradeep-kumar-rastogi-v-the-xvi-a-d-j-meerut-and-others-39741
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
365
has now become possible "for any
Industrial Tribunal Labour Court or other
Authority constituted under the Industrial
Disputes Act, 1947" to exercise any
jurisdiction power, authority in regard to
recruitment or matters concerning such
recruitment and such service matters as
may be otherwise falling within the
jurisdiction of the Central Administrative
Tribunals Act, 1985 as they stand
amended by Act 19 of 1986 leads to the
conclusion that though the workman can
approach the Industrial Tribunal, Labour
Court or the authority constituted under
the provision of the Industrial Tribunal
Act,1947, it cannot be said that a petition
under Section 19 of the Act is not
maintainable
before
the
Central
Administrative Tribunal. The amended
provision gives a choice to the litigant -
workman either to approach the Central
Administrative Tribunal or the Labour
Court and in case the litigant has chosen
the forum of the Central Administrative
Tribunal,
it
cannot
said,
that
the
application is not maintainable. The view
taken by the Central Administrative
Tribunal
that
the
application
under
Section 19 of the Administrative Tribunal
Act, 1985 filed by the petitioner was not
maintainable
before
it,
cannot
be
sustained. The writ petition, in the
circumstances, succeeds and is allowed.
The impugned order of Tribunal is set
aside. The matter is remitted to the
Central
Administrative
Tribunal,
Allahabad bench, Allahabad for taking
decision on merit.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 23 *
7+( +21·%/( 23 *$5* -
$5* -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

6UL 3DUGHHS .XPDU 5DVWRJL «3HWLWLRQHU
9HUVXV
7KH
;9,
$GGLWLRQDO
'LVWULFW
-XGJH
0HHUXW DQG RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH $SSHOODQW
6KUL 5DMHVK 7DQGRQ
6KUL $QXUDJ .KDQQD
&RXQVHO IRU WKH 5HVSRQGHQWV
6KUL $VKLVK .XPDU 6LQJK
6KUL 5DYL .LUDQ -DLQ
6UL 3XVKNDU

&RQVWLWXWLRQ RI ,QGLD $UWLFOH UHDG
ZLWK 83 8UEDQ %XLOGLQJV 5HJXODWLRQ RI
OHWWLQJ 5HQW DQG (YLFWLRQ $FW
6LDSRZHUV
XQGHU ZKHUH WR EH
H[HUFLVHG
+HOG ± 3DUD DQG
,W LV QRW D FDVH LQ ZKLFK WKH OHDUQHG
3UHVFULEHG $XWKRULW\ RU WKH DSSHOODWH
FRXUW KDV DUULYHG DW WKH FRQFOXVLRQ EDVHG
RQ ZURQJ DSSOLFDWLRQ RI SULQFLSOHV RI ODZ
RU KDV IDLOHG WR WDNH LQWR FRQVLGHUDWLRQ
WKH
UHOHYDQW
PDWHULDO
ZKLFK
ZDV
JHUPDQH IRU GHFLVLRQ RQ WKH FRQWURYHUV\
LQ KDQG 7KH ILQGLQJV UHFRUGHG E\ WKHP
FDQQRW
EH
VDLG
WR
EH
DUELWUDU\
RU
SHUYHUVH
, IHHO WKDW VXIILFH LW WR VD\ WKDW WKLV &RXUW
FDQQRW UH DSSUHFLDWH RU UHDSSUDLVH WKH
ILQGLQJV RI IDFWV UHFRUGHG E\ WKH WZR
FRXUWV EHORZ WKDW WKH D ODQGORUG ERQD
ILGH UHTXLUHV IRU KLV SHUVRQDO RFFXSDWLRQ
WKH WHQDQWHG VKRS DQG WKDW WKH EDODQFH
RI KDUGVKLS WLOWV LQ KLV IDYRXU
&DVH /DZ GLVFXVVHG
1All] Sri Pradeep Kumar Rastogi V. The XVI A.D.J., Meerut and others
366
 $OO 5&
 835&&
 835&&
 835&&
 $5&
 $5&

By the Court

1. The dispute in this writ petition
pertains to the release of Shop No. 85 (old
premises numbers 286,288 and 289)
situate in Subhash Bazar, Meerut City.
The said shop was originally owned by
one Jagdish Chandra Gera and was under
the tenancy of late Dr. Jitendra Vir, who
was running the business of sale of
homeopathic medicines. After the death
of the original tenant, his son Pradeep
Kumar Rastogi, the present petitioner
inherited the tenancy rights and is
carrying on the business of sale of
homeopathic medicines from the disputed
shop. He is paying monthly rent at the
rate
of
Rs.57.50P.
Vivek
Gupta
respondent no. 3 had purchased the
property, in question, from the previous
owner Jagdish Chandra Gera in the year
1988.

2. He filed an application for release
of the tenanted accommodation under
Section 21(1)(a) of the U.P. Urban
Building (Regulation of Letting, Rent and
Eviction) Act, 1972 (Act No. XIII of
1972) (Hereinafter referred to as 'the
Act'). It was registered as P.A. case no.23
of 1994. The case of the landlord
respondent no. 3 was that he is in
occupation of a tenanted shop situate in a
closed lane of Khair Nagar Bazar, Meerut
since the year 1989 at an exorbitant
monthly rent of Rs.1300 and that the
provisions of the Act also do not apply to
the said shop. According to the landlord,
he was under the threat for vacating the
tenanted shop in Khair Nagar Bazar and
therefore has a bonafide and genuine need
to occupy the tenanted shop in occupation
of the petitioner Pradeep Kumar Rastogi.
It was also averred that the tenanted shop
in dispute was eminently suited for
carrying out the business of ready-made
garments. The petitioner resisted the
various allegations of the landlord -
respondent no. 3 and contested the
petition on a variety of grounds. The
Prescribed Authority allowed the release
petition of the landlord-respondent no. 3
by order dated 18.08.2000 and the present
petitioner was directed to hand over the
vacant possession of the tenanted shop to
the landlord-respondent no. 3 within the
specified period subject to payment of
compensation equivalent to two years
rent. The petitioner preferred a rent appeal
no. 243 of 2000 under section 22 of the
Act. The appeal was also dismissed on
25.10.2000 by XVIth Additional District
Judge, Meerut-respondent no. 1. It is in
these circumstances that the petitioner has
come forward before this Court by filing
the present petition under Article 226 of
the Constitution of India to challenge the
order of release passed by the Prescribed
Authority and as confirmed in appeal.

3. At the time of admission of the
present petition, Sri Ravi Kiran Jain,
learned Senior Advocate, assisted by Sri
Pushkar put in appearance on behalf of
the landlord-respondent no. 3. On behalf
of the petitioner, Sri Rajesh Tandon,
learned Senior Advocate assisted by Sri
Anurag Khanna had appeared. Learned
counsel for both the parties agreed that
the petition be finally disposed of on
merits on the basis of material available
on record. I have, therefore, heard this
petition, on merits, at the admission stage
in view of the agreement between the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
367
learned counsel for the parties and
proceed to decide the same on merits.

4. It is an indubitable fact that the
petitioner is the tenant of the disputed
shop and the relationship of landlord and
tenant subsists between the petitioner and
the respondent no. 3. The petitioner has
acknowledged the respondent no. 3 as the
owner-landlord by paying monthly rent.
The application for release of the said
shop under Section 21(1)(a) of the Act
was moved by the landlord as he needed
the disputed shop to occupy himself to
carry on his business as he had been
carrying on the business in rented shop in
Khair Nagar market which according to
him was highly inconvenient for the
business of readymade garments as the
lay customer hesitated to approach the
shop on account of its location. According
to him, he was paying exorbitant rent of
Rs.1300 per month and did not have the
required protection to continue in the
rented shop as the provisions of the Act
are not applicable to it. On the other hand,
the petitioner took the plea that he is
having a joint business with his father and
brothers and that there are other Joint
Hindu Family properties in which the
petitioner is joint owner. In any case,
according to the petitioner, the first floor
accommodation
is
available
to
the
landlord in Subhash Nagar itself which
can usefully utilize for running the
business which he is carrying on from the
rented shop in Khair Nagar market. Sri
Rajesh Tandon, learned counsel for the
petitioner further pointed out that the
petitioner has earned good will in the sale
of homeopathic medicines on account of
his long standing possession over the
disputed shop for a number of decades
and in case the petitioner is evicted
pursuant to the release order, his business
is likely to be completely ruined. It was
urged that the Prescribed Authority as
well as the appellate court have not
appraised the various pleas taken by the
petitioner in their true perspective and
consequently they were misdirected in
arriving at the conclusions which they
have recorded. Sri Tandon also took me
through the evidence of the parties and
the findings recorded by the two courts
below. Sri Ravi Kiran Jain, maintained
that in view of the concurrent findings of
fact recorded by the two authorities below
this court has very limited jurisdiction and
the writ jurisdiction under Article 226 of
the Constitution of India cannot be
invoked to upset the said findings.

5.

I
have
given
thoughtful
consideration
to
the
respective
submissions made by the learned counsel
for the parties. The order passed by the
Prescribed Authority is quite elaborate
and well reasoned. All the pleas which
have been canvassed by Sri Rajesh
Tandon before this court have been
considered by him. The judgement of the
appellate court is even more thorough. It
gives a complete answer to all the points
which have been canvassed by Sri Tandon
before this court. None of the findings
recorded by the two courts below can be
said to be perverse or suffering from
material irregularity. As a matter of fact, a
reading of the two judgements would
indicate that the Prescribe Authority as
well as the appellate court have rightly
rejected the various contentions and the
pleas raised on behalf of the petitioner.

6. The question of bonafide need as
well as that of the hardship has been held
to be a finding of fact which cannot be
interfered
with
by
invoking
the
extraordinary jurisdiction under Article
1All] Sri Pradeep Kumar Rastogi V. The XVI A.D.J., Meerut and others
368
226 of the Constitution of India . The
findings of the Prescribed Authority as
well as the appellate authority that the
tenanted shop was bonafide required by
the landlord-respondent no. 3 for his own
use and occupation is unquestionably a
finding of fact and it is not competent for
this court to interfere with the said finding
by reappraising the evidence. In Kamla
Sarin Vs. Shyam Lal and others - 1984(2)
All. R.C.-344, this court following the
various decisions of the Hon'ble Supreme
Court observed as follows :-

"Their finding that the need of the
petitioner was not bonafied being that of
fact cannot be set aside under Article 226
of the Constitution. In Munni Lal and
another Vs. Prescribed Authority and
another - A.I.R. 1978 S.C.-29 the
Supreme Court held while deciding an
appeal preferred from the judgement of
this court that the finding on the ground of
bonafied need is one of fact. In Nattu Lal
Vs. Radhey - AIR 1974 SC-1696, a
similar view has been taken. The court
under Article 226 of the Constitution has
no power to reappraise evidence and to
record its own finding. In Babhutmal
Raichand Vs. Laxmibai - AIR 1975 SC1296 the Supreme Court held that the
High Court has no jurisdiction under
Article 227 to reconsider the evidence.
The law laid down in this case applied to
the present petition under Article 226 of
the Constitution as well (see Smt.
Labhkumar
Bhagwani
Shaha
Vs.
Janardan Mahadeo Kalan - AIR 1983 SC535)"
7. In Ram Rakesh Pal and others Vs.
Additional District Judge and others -
1976 U.P.R.C.C.-376, it was ruled that the
question of bona fide requirement of the
premises as well as that of comparative
need are questions of fact and therefore
High Court has no power to correct the
question of fact even if erroneously
decided. A reference may also be made to
the decision of this court in the case of
Jagan Prasad Vs. District Judge and
others - 1976 U.P.R.C.C.-342 and Laxmi
Narain Vs. IInd Additional District Judge
and others -1977 U.P.R.C.C.-230. In the
case of Smt. Nirmala Tandon Vs. Xth
Additional District Judge, Kanpur Nagar
- 1966 (2) ARC-409 this court held that
the writ jurisdiction of this court under
Articles 226 and 227 of the Constitution
of India is of supervisory nature only and
it does not ____ a court of appeal when
called upon to judge the finding of the
competent authorities, namely, the bona
fide need of the landlord and comparative
hardship of the parties. The court would
not embark upon reappraisal of the
evidence or substitute its own findings of
fact in place of the findings reached by
the fact finding authorities. It is clearly
outside the Court and ambit of the judicial
review when this court exercise its powers
under Article 226 of the Constitution of
India. However, a finding of fact may be
interfered with when it is based on
account of wrong application of principle
of law relevant thereto or relevant
material
has
not
been
taken
into
consideration or a finding is otherwise
arbitrary or perverse.

8. The matter was further considered
by the apex court in the case Kamleshwar
Prasad Vs. Pradumanju Agarwal --
1997(1) ARC-627 in which it was held
that under the Act the order of the
appellate authority is final and the said
order is a decree of the civil court and a
decree of a competent court having
become final cannot be interfered with by
the High Court is exercise of its power of
superintendence under Articles 226 and
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
369
227 of the Constitution of India by taking
into account may subsequent event which
might have happened. That apart, it was
further observed that the fact that the
landlord needed the premises in question
for starting a business which fact has been
found by the appellate authority, in the
eye of law, must be that on the day of
application for eviction, which is the
crucial day, the tenant incurred the
liability of being evicted from the
premises. The finality of the decision
cannot be disbursed on account of any
subsequent events on a petition under
Article 226 of the Constitution of India.

9. It is not a case in which the
learned Prescribed Authority or the
appellate
court
has
arrived
at
the
conclusion based on wrong application of
principles of law or has failed to take into
consideration the relevant material which
was
germane
for
decision
on
the
controversy
in
hand.
The
findings
recorded by them cannot be said to be
arbitrary or perverse.

10.

Without
burdening
this
judgement with a plethora of other
decisions on the point, I feel that suffice it
to say that this court cannot reapprociate
or reappraise the findings of facts
recorded by the two courts below that the
landlord bona fide requires for his
personal occupation the tenanted shop and
the balance of hardship tilts in his favour.
It is an innate desire of every ownerlandlord to occupy his own shop. In the
instant case the need of the landlordrespondent no. 3 cannot be said to be
unreal, fraudulent or colourable. The
release petition is not actuated by any
avarice. When once the need of the
landlord is established as bona fide and
genuine, the tenant has to make a way.
There is ample evidence on record to
indicate that the petitioner did have may
alternatives to shift but he did not make
any attempts in spite of the fact that the
question of release of the tenanted shop in
favour of the landlord continued to attract
the attention of the authorities below for a
long period of six years.

11. All told, the petitioner has no
case to resist the bona fide need of the
landlord to occupy his own shop which is
under the tenancy of the petitioner. The
release application has been rightly
allowed. The writ petition, therefore, fails
as being devoid of merits and substance
and is accordingly dismissed without any
order as to costs.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 23 *$5* -
7+( +21·%/( 23 *$5* -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

6KDNXQWDOD 'HYL
«3HWLWLRQHU
9HUVXV
([HFXWLYH (QJLQHHU DQG DQRWKHU
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6UL 9.-DLVZDO
6UL +1 6LQJK
6UL 3& 6ULYDVWDYD
6UL $/ 1DTYL
&RXQVHO IRU WKH 5HVSRQGHQWV
6UL $UYLQG .XPDU
6&

83
5HFUXLWPHQW
RI
'HSHQGHQW
RI
*RYHUQPHQW 6HUYDQW '\LQJ LQ +DUQHVV
5XOHV 2QH 6KDNXQWDOD 'HYL DORQJ
ZLWK KHU GDXJKWHU SXW D FODLP UHODWLQJ WR
JUDWXLW\
SHQVLRQ
HWF
EHLQJ
OHJDOO\