# Subhash Chandra Sharma v. Naresh Chand Jindal

- **Citation:** (2013) 2 ILRA 1105
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-12-23
- **Case number:** Civil Misc. Writ Petition No.36202 of 2013
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-chandra-sharma-v-naresh-chand-jindal-42567
- **Pages:** 5

## Headnote

1106 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

U.P.
Urban
Building(Regulation
of
Letting
Rent
&
Eviction)Act
1972-
Section 21(c) a-application by Land
Lord-on personal bonafide need tenant
objected
as
having
alternate
accommodation-Land Lord being heart
patient and his wife suffering from
'Arthritis' -held-land lord is best judgefinding
regarding
bonafide
need
recorded by both court below-warrant
no interfere-petition dismissed.

Held: Para-9
In my view, the bonafide need and
comparative
hardship
are
to
be
examined only with reference to the
property
in
dispute.
Whether
other
portion of the house is vacant or it has
been let out, is wholly irrelevant. It is
the choice of the landlord to either let it
out or to keep the property in his
possession. The tenant has no right to
dictate his own term. The tenant, as a
matter of right, cannot claim that he may
be provided alternate accommodation.

Case Law discussed:
(1996) 6 SCC 222; (1981) 3 SCC 36; (1996) 5
SCC 353; AIR 2000 SC 534; 2010(3) ARC 544

## Text

2 All] Subhash Chandra Sharma Vs. Naresh Chand Jindal

1105
which includes 'Shilpkar' at serial no. 65. The
Presidential Order or the notification of the
State Government does not include any subcaste for any of the 66 notified Scheduled
Caste. The State Government or the High
Court does not have a power to expand the
notified Scheduled Caste by adding any subcaste, race, tribe or any group within that
caste. The Courts have not been given
powers to expand the scope of the caste by
adding sub-caste vide Kavita Solanke vs.
State of Maharashtra and others Civil
Appeal No.5821 of 2012 decided by
Supreme Court of India on 9.8.2012. In this
judgment the Supreme Court held that the
Courts could not and should not expand their
jurisdiction while dealing with the question
as to whether a particular caste or sub-caste,
tribe or sub-tribe was included in any one of
the Entry mentioned in the Presidential
Orders issued under Article 341 and 342 of
the Constitution. Even the Governor of the
State in exercise of his executive powers or
State Government cannot add or delete any
caste from such notification

We have made the reference of the
notifications from Sewa Vidhi by Shri
V.K. Singh published by Aliya Law
Agency (Pages 136 and 137).

13. It is pertinent to refer here that the
'Kasera' was included in Schedule-I with
reference to Section 2 (b) of U.P. Public
Services (Reservations for Scheduled Castes,
Scheduled Tribes and Other Backward
Classes) Act, 1994 at serial no.54:- "54,
Kasera, Thathera, Tamrakar in the list of
Other Backward Classes." The UP Act of
1994 did not amend the List of Scheduled
Caste inasmuch as the said List can only be
amended by the Parliament under Article 341
(2) of the Constitution of India under its
statutory powers.

14. In case 'Kasera' caste was
included as sub-caste of Shilpkar in the
Presidential Order or any amendments
made by Parliament, there was no need to
include 'Kasera' in the List of OBC in
Schedule I of the UP Act of 1994.

15. On the aforesaid reasoning, we
disagree with the judgment and refer the
following questions to be considered by
the larger bench:-

"(1) Whether 'Kasera' is a sub-caste of
'Shilpkar' which is notified in the category of
Scheduled Caste under Article 341 (1) and
(2) of the Constitution of India?

(2)Whether
the
judgment
dated
23.12.2011 in Service Bench No.2080 of
2011 (State of UP and another vs. Vijay
Shanker and another) is correct in law?.

16. Let the papers be placed before
Hon'ble the Chief Justice for nominating a
larger bench to decide the matter.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 16.07.2013

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No.36202 of 2013

Subhash Chandra Sharma
 ...Petitioner
Versus
Naresh Chand Jindal
 ...Respondents

Counsel for the Petitioner:
Sri M.A. Qadeer, Sri Mohd. Hisham Quadeer
Sri Shamim Ahmad

Counsel for the Respondents:
Sri B.D. Mandhyan, Sri Sanjay Kumar
1106 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

U.P.
Urban
Building(Regulation
of
Letting
Rent
&
Eviction)Act
1972-
Section 21(c) a-application by Land
Lord-on personal bonafide need tenant
objected
as
having
alternate
accommodation-Land Lord being heart
patient and his wife suffering from
'Arthritis' -held-land lord is best judgefinding
regarding
bonafide
need
recorded by both court below-warrant
no interfere-petition dismissed.

Held: Para-9
In my view, the bonafide need and
comparative
hardship
are
to
be
examined only with reference to the
property
in
dispute.
Whether
other
portion of the house is vacant or it has
been let out, is wholly irrelevant. It is
the choice of the landlord to either let it
out or to keep the property in his
possession. The tenant has no right to
dictate his own term. The tenant, as a
matter of right, cannot claim that he may
be provided alternate accommodation.

Case Law discussed:
(1996) 6 SCC 222; (1981) 3 SCC 36; (1996) 5
SCC 353; AIR 2000 SC 534; 2010(3) ARC 544

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

1. Heard Sri M.A. Qadeer, Senior
Advocate,
assisted
by
Sri
Shamim
Ahmad, learned counsel for the petitioner
and Sri B.D. Mandhyan, Senior Advocate,
assisted by Sri Sanjay Kumar, learned
counsel appearing on behalf of the
respondent.

2. This is the petition by the tenant,
challenging the order of the Prescribed
Authority dated 16.5.2012 and the order
of the District Judge, J.P. Nagar (Amroha)
dated 1.5.2013.

3. The petitioner is a tenant of
ground floor house no. 91, Amroha,
owned by the respondent. The respondentlandlord filed a release application under
Section 21 (1) (a) of the Act No. 13 of 1972
for the release of the premises in dispute in
his favour on the ground that he is an old
man, aged about 65 years at that time and he
is a heart patient and his wife is also
suffering from Arthritis. He had four
daughters and one son, all married. The son
was residing at Ghaziabad. Both, son and
daughter-in-law are doctors. They were
earlier residing along with son at Ghaziabad
upto 2004 but they have left the house
because of non-understanding with the
daughter-in-law and started living with his
brother at Amroha. The petitioner filed
written statement. In Para 24 of the written
statement, it is stated that apart from house
no. 91, the respondent had one more house
no. 93 at Amroha, which was in the name of
his father and after the death, the respondent
has become owner, hence the respondent has
no bonafide need of the premises in dispute.
It was stated that during the pendency of the
suit in 2010, the first floor has been vacated
by Sri Anil Kumar and second floor has also
been vacated by Sri Mahesh Bhatnagar and
both the floors were available to the
respondent which were sufficient for their
living.

4. The Prescribed Authority allowed
the release application on the ground that
the applicant is an old man and is
suffering from heart disease and has also
been subjected to heart operation and his
wife is suffering from Arthritis and both
have been advised to live on the ground
floor, which was in possession of the
petitioner and, therefore, the landlord has
established the bonafide need. It is further
stated that it is upon the landlord to decide
that
which
floor
would
be
more
appropriate for his living and the tenant
cannot interfere on his discretion. On a
comparative hardship, the Prescribed
2 All] Subhash Chandra Sharma Vs. Naresh Chand Jindal

1107
Authority has stated that the tenant was a
Police personnel and is out of service and
he belongs to Bijnor and after the
retirement, he can live at Bijnor. It has
been further observed that the tenant has
neither any business nor he has any
agricultural land at Amroha.

5. Being aggrieved by the order of
the Prescribed Authority, the petitioner
filed an appeal which has been dismissed
by the order dated 1.5.2013, which is
impugned in the present writ petition.

6. Learned counsel for the petitioner
submitted that the Prescribed Authority in
its order has stated that the second floor
was vacant. The petitioner has offered to
vacate the premises in case he may be
provided alternate accommodation on the
first floor or on the second floor. The said
plea has not been accepted by the
appellate authority on the ground that
such offer has not been made when both
the premises fallen vacant in the year
2010. He further submitted that the
landlord had another house at Amroha,
which claimed to have been sold in the
year 2009 during the pendency of the suit
and the landlord failed to establish his
genuine bonafide need inasmuch as the
comparative hardship is in favour of the
tenant. The landlord is at present living
along with his brother at Amroha
comfortably and at present there is no
genuine need.

7. I do not find substance in the
argument of learned counsel for the
petitioner.

8. The bonafide need and the
comparative hardship are to be examined
with reference to the premises in dispute.
I am of the view that on the facts and
circumstances, the landlord was able to
make out a case of genuine bonafide need
of the premises in dispute. The landlord
was aged about 65 years when the release
application was filed. At present he is
more than 70 years old. Various evidences
have been filed to demonstrate that he was
suffering from heart disease and has also
been subjected to heart surgery. The
evidences
have
also
been
filed
to
demonstrate that his wife was Arthritis
patent and both have been advised to live on
the ground floor. This establishes genuine
bonafide need of the landlord. So far as the
comparative hardship is concerned, it is also
in favour of the landlord as observed by
both the authorities that the petitioner was a
retired Police personnel and is out of service
and belongs to Bijnor. Neither he is doing
any business nor he has any agricultural
land at Amroha and, therefore, he can
conveniently go to Bijnor. In any view of
the matter, no effort has been made since
last several years to search any other
accommodation. Both the authorities have
recorded the findings that other house no.
93 was in the name of his father, who had
executed a will in favour of his grandson
and the grandson sold the said house in the
year 2009. The said house was neither
owned by the landlord nor it was in his
possession.

9. In my view, the bonafide need
and comparative hardship are to be
examined only with reference to the
property in dispute. Whether other portion
of the house is vacant or it has been let
out, is wholly irrelevant. It is the choice of
the landlord to either let it out or to keep
the property in his possession. The tenant
has no right to dictate his own term. The
tenant, as a matter of right, cannot claim
that he may be provided alternate
accommodation.
1108 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

10. In the case of Shiv Sarup
Gupta Vs. Dr. Mahesh Chand Gupta,
reported in (1996) 6 SCC 222, while
considering the bonafide requirement of
the landlord, the Apex Court has held that
the alternative accommodation available
to the landlord, must be reasonably
suitable, obviously in comparison with the
suit
accommodation
wherefrom
the
landlord is seeking eviction. Convenience
and safety of the landlord and his family
members would be relevant factors. While
considering
the
totality
of
the
circumstances, the court may keep in
view the profession or vocation of the
landlord and his family members, their
style of living, their habits and the
background wherefrom they come.

11. In the case of M.M. Quasim Vs.
Manohar Lal Sharma, reported in
(1981) 3 SCC 36, the Apex Court has
held that the landlord does not have an
unfettered right to choose the premises
but merely showing that the landlord has
some other vacant premises in his
possession may not be sufficient to
negative the landlord's claim if the vacant
premises were not suitable for the purpose
for which he required the premises. The
Court must understand and appreciate the
relationship between the legal rules and
necessities of life.

12. In the case of Sarla Ahuja Vs.
United India Insurance Co. Ltd. (1996)
5 SCC 353, the Apex Court has held that
the Rent Controller should not proceed on
the
assumption
that
the
landlord's
requirement is not bonafide. When the
landlord shows a prima facie case a
presumption that the requirement of the
landlord is bonafide is available to be
drawn. It is not for the tenant to dictate
terms to the landlord as to how else he
can
adjust
himself
without
giving
possession of the tenanted premises.
While deciding the question of bonafides
of the requirement of the landlord, it is
quite unnecessary to make an endeavour
as to how else the landlord could have
adjusted himself.

13. In the case of Ragavendra
Kumar Vs. Firm Prem Machinery and
Co., reported in AIR 2000 SC 534, the
Apex Court has held that it is settled
position of law that the landlord is best
judge of his requirement for residential or
business purpose and he has got complete
freedom in the matter.

14. In the case of Ashfaque Brother
and others Vs. Additional District
Judge, Court No. 10, Kanpur Nagar
and others, reported in 2010 (3) ARC
544, this Court has held that it is the legal
right of the landlord to decide which
portion or accommodation would suit
him/her for utilizing it how and in what
manner. This factor of utility is to be
satisfied by him to meet his needs is only
dependent upon the landlord only and
tenant has no say in the matter.

15. In view of the above, the
findings recorded by both the authorities
that the landlord has a bonafide need and
comparative hardship is in favour of the
landlord are the findings of fact, based on
material
on
record
and
needs
no
interference.

16. Learned counsel for the
petitioner submitted that a reasonable
time may be allowed to vacate the
premises.

17. In the facts and circumstances, it
would be appropriate to allow three
2 All] Gopal Ji Gupta Vs. Debt Recovery Appellate Tribunal & Ors.

1109
months time to the petitioner to vacate the
premises, in case if the petitioner gives
and undertaking before the court below.

18. In the result, the writ petition
fails and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.36314 of 2013

Gopal Ji Gupta

 ...Petitioner
Versus
Debt Recovery Appellate Tribunal & Ors.
 ....Respondents

Counsel for the Petitioner:
Sri Deepak K. Jaiswal, Sri Sanjay Kumar
Gupta

Counsel for the Respondents:
Sri V.K Srivastava, Sri Yashwant Singh

Securtization
and
Reconstruction
of
Financial Assests
and
Enforcement
of
Security
Interest
Act,2002-Section
18-
appeal against order debt recovery tribunalcondition of 50 % deposit-as per 2nd
proviso-Bank
already
recovered
Rs.
50,11,847/-
against
demand
of
Rs.
60,65,380/-further deposited Rs. 2,65000/-
before filing appeal-held-once liability not
fixed by Tribunal-against demand notice
more than 50% already recovered during
auction sale-no further amount payableorder passed by Appellate Tribunal set-aside-with direction to entertain appeal
without pre-deposit condition.

Held: Para-12
The Court is of the opinion that there was
no requirement for the petitioner to deposit
any further amount for entertainment of his
appeal under the second proviso to Section
18 of the Act of 2002.
Case Law discussed:
2010(3) Banker's Journal 9

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri Deepak Kumar Jaiswal,
the learned counsel for the petitioner and
Sri V.K. Srivastava, the learned counsel
for the respondent-bank.

2. With the consent of the learned
counsel for the parties, the writ petition is
being decided at the admission stage itself
without calling for any counter affidavit,
since no factual controversy is involved in
the present writ petition.

3. The petitioner is a guarantor to a
loan taken by M/s Ganpati Traders, who
defaulted in the payment of the loan.
Accordingly, the bank issued a notice
under Section 13(2) of the Securitization
and Reconstruction of Financial Assets
and Enforcement of Security Interest Act,
2002 (hereinafter referred to as the Act of
2002) and thereafter, issued a notice
under Section 13(4) of the Act of 2002 for
taking possession of the property of the
guarantor, pursuant to which possession
was taken and the property of the
guarantor was put to auction. It has come
on record, that pursuant to the auction, a
sum of Rs.50,11,847/- has been realized
towards the loan amount.

4. The petitioner, being aggrieved by
the issuance of the notice bank under
Section 13(4) of the Act of 2002, filed an
application under Section 17 of the Act of
2002 before the Debts Recovery Tribunal
praying that the possession be restored in
his favour. This application was rejected
by the Tribunal, against which the
petitioner preferred an appeal under
Section 18 of the Act of 2002.