# Suresh Prasad v. A.D.J. & Ors

- **Citation:** (2016) 3 ILRA 171
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-05-28
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-prasad-v-a-d-j-ors-43517
- **Pages:** 10

## Headnote

U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972-Ss. 21(1)(a),
16(1)(b), 11, 12, 13, 15

Release of shop- in proceedings under Section 21(1)(a) of the U.P. Act No. 13 of 1972, the landlord
must independently establish a bona fide and genuine need, and no presumption in his favour can
be drawn merely because the tenant or his family members occupy or own another non-residential
accommodation.

Bona fide need- the expression "bona fide requirement" occurring in Sections 16(1)(b) and 21(1)(a)
of the Act carries the same meaning, and mere desire of the landlord is not sufficient; the requirement
must be real, honest, and in good faith.

Landlord's son- the comparative hardship of the parties is a relevant consideration, and where the
tenant's wife owns and occupies a commercial complex and runs a wholesale business therein, the
balance of hardship tilts in favour of the landlord.
172 INDIAN LAW REPORTS ALLAHABAD SERIES

Alternative accommodation.- however, where the tenant specifically pleads that another shop in
the same building was available to the landlord on the date of filing of the release application, and the
landlord asserts that such shop was already let out prior thereto, the burden lies on the landlord to
establish by positive evidence that the shop was not in his vacant possession on the relevant date.

Burden of proof - negative evidence cannot be expected from the tenant, and the Prescribed
Authority errs in placing the burden on the tenant to prove non-availability of the alleged alternative
accommodation.

Clean hands - rent receipts of a period subsequent to the filing of the release application do not
conclusively establish tenancy as on the date of filing, and failure of the landlord to produce
contemporaneous evidence gives rise to a legitimate doubt regarding bona fides.

Comparative hardship- even in cases of alleged deemed vacancy or unauthorized occupation, the
premises cannot be treated as available to the landlord unless a declaration of vacancy is made in
accordance with law; nevertheless, concealment of material facts disentitles the landlord to relief.
Writ petition dismissed.

Scope of interference- the findings of the Courts below on bona fide need and comparative
hardship were affirmed; however, findings relating to occupation and availability of the alleged
alternative shop being unsustainable, the matter was remitted to the lower appellate court for fresh
decision on the limited issue after affording opportunity to both parties to adduce evidence.

Writ petition disposed of with remand.

List of Cases cited:

## Text

3 All. Suresh Prasad Vs A.D.J. & Ors.
171
32. We are, therefore, of the opinion that in the absence of a procedure prescribed
under 1984 Rules having been followed, the appointment of Uma Shankar Sharma could not
have been made in view of Rule 5 of the 1984 Rules.

33. We, therefore, record that both the petitioners namely Uma Shankar Sharma and
Rakesh Kumar Gupta are not entitled for any mandamus from this Court in the matter of
payment of salary from the State Exchequer.

34. The review application is allowed to the extent indicated above. The judgment
dated 28.5.2014 stands substituted by this order.

35. Accordingly, the appeal filed by the Committee of Management is allowed and the
appeal filed by Uma Shankar Sharma is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2016

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.

Writ A No. - 20396 of 2015

Suresh Prasad ...Petitioner
Versus
A.D.J. & Ors. ...Respondents

Counsel for the Petitioner:
Vineet Kumar Singh, H.N. Singh, Rama Kant Dubey

Counsel for the Respondents:
Siddharth Nandan

U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972-Ss. 21(1)(a),
16(1)(b), 11, 12, 13, 15

Release of shop- in proceedings under Section 21(1)(a) of the U.P. Act No. 13 of 1972, the landlord
must independently establish a bona fide and genuine need, and no presumption in his favour can
be drawn merely because the tenant or his family members occupy or own another non-residential
accommodation.

Bona fide need- the expression "bona fide requirement" occurring in Sections 16(1)(b) and 21(1)(a)
of the Act carries the same meaning, and mere desire of the landlord is not sufficient; the requirement
must be real, honest, and in good faith.

Landlord's son- the comparative hardship of the parties is a relevant consideration, and where the
tenant's wife owns and occupies a commercial complex and runs a wholesale business therein, the
balance of hardship tilts in favour of the landlord.
172 INDIAN LAW REPORTS ALLAHABAD SERIES

Alternative accommodation.- however, where the tenant specifically pleads that another shop in
the same building was available to the landlord on the date of filing of the release application, and the
landlord asserts that such shop was already let out prior thereto, the burden lies on the landlord to
establish by positive evidence that the shop was not in his vacant possession on the relevant date.

Burden of proof - negative evidence cannot be expected from the tenant, and the Prescribed
Authority errs in placing the burden on the tenant to prove non-availability of the alleged alternative
accommodation.

Clean hands - rent receipts of a period subsequent to the filing of the release application do not
conclusively establish tenancy as on the date of filing, and failure of the landlord to produce
contemporaneous evidence gives rise to a legitimate doubt regarding bona fides.

Comparative hardship- even in cases of alleged deemed vacancy or unauthorized occupation, the
premises cannot be treated as available to the landlord unless a declaration of vacancy is made in
accordance with law; nevertheless, concealment of material facts disentitles the landlord to relief.
Writ petition dismissed.

Scope of interference- the findings of the Courts below on bona fide need and comparative
hardship were affirmed; however, findings relating to occupation and availability of the alleged
alternative shop being unsustainable, the matter was remitted to the lower appellate court for fresh
decision on the limited issue after affording opportunity to both parties to adduce evidence.

Writ petition disposed of with remand.

List of Cases cited:

1. Dr. Sita Ram Gandhi v. IV Additional District Judge, Meerut and Another, 1983 (1) ARC 782

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)

1. Heard Sri H.N. Singh, learned counsel for the petitioner and Sri Siddharth Nandan,
learned counsel for the respondents.

2. This is the tenant's petition challenging the order of release of the shop situated on
the ground floor of the building at Miyan Bazar, South Gate, Kotwali Road, Gorakhpur
owned by respondent no.3.

3. The release application under Section 21(1)(a) of U.P. Act No.13 of 1972
(hereinafter referred to as 'the Act'), has been filed by the landlord on the ground that the
shop in question is needed for his son Manish Srivastava, who is unemployed. It is also
stated that the landlord had retired from the post of Senior Assistant, District Supply Office,
Gorakhpur in the year 2007, he would assist his son. His elder son Manish was earlier
preparing for the competitive examinations and had taken a temporary job in HDFC Bank,
Gorakhpur as a Sales Executive in December 2006. However, he had to resign in compelling
circumstances in the month of November 2007. He again took a job in November 2007 in
IDBI Bank, Gorakhpur which he had to leave in August 2008. Since thereafter, he is sitting
idle and has lost hope of getting a decent job.
3 All. Suresh Prasad Vs A.D.J. & Ors.
173

4. Now, he wants to start a business of electric fittings in the shop in question as it is
the most suitable place for the business proposed.

5. The tenant got constructed a commercial-cum-residential complex at a short distance
from the shop in question and as such he would not suffer any hardship, in case, the shop in
question is released.

6. The release was contested by the tenant and a specific stand has been taken in the
written statement that in the shop marked by letter "P" (shown in the map appended to the
written statement) (hereinafter referred to as Shop "P"), initially, somewhere around the year
1996-97, Manish Srivastava, son of the landlord was doing business in the name of "Manish
Provision Stores". He continued this business till the year 2008 and, thereafter, electric
business in the name of "Abhishek Electricals" was started in the same shop "P" which was
also being carried on by the elder son of the landlord namely Manish Srivastava. The said
shop namely Shop "P" is still in occupation of Manish Srivastava. The contention of the
landlord that his son 3 is sitting idle is incorrect and he does not require the shop in question.

7. So far as another son of the landlord namely Abhishek Kumar Srivastava is
concerned, he is working as a Sales Manager in M/S Mahendra Company and is getting
good salary.

8. In rejoinder, the landlord averred that Manish Srivastava, his elder son though started
business of provision store and later on of electric goods in Shop "P" as submitted by the
tenant but he had to close these business. The electric goods business which was started in
the year 2003 could not be continued on account of losses suffered by Manish Srivastava
and somehow he had managed to repay the loans. In paragraph '13' of the rejoinder affidavit,
it is stated that shop "P" has been given on rent to one Gopal Kumar Gupta and is in his
possession w.e.f. 01.10.2005 at a monthly rent of Rs.1500 p.m/-. A written deed dated
17.01.2006 has been executed in this regard. The business of sale of electric fans and spare
parts in Shop "P" is being run by Sri Gopal Kumar Gupta and it is not in the vacant
possession of the landlord.

9. It appears that after exchange of affidavits, during 4 the course of arguments before
the Courts below, the tenant kept on insisting that the Shop "P" is not in occupation of the
alleged tenant Gopal Kumar Gupta rather Manish Srivastava, the son of the landlord is
doing his electrical goods business therein.

10. It appears that certain rent receipts were filed by the landlord to establish that Gopal
Kumar Gupta was the sitting tenant in shop "P" but an objection was raised during the
course of arguments that the rent receipts were of the period after filing of the release
application. The argument of the tenant regarding availability of another shop namely Shop
"P" has been rejected by the Courts below on the ground that the tenant could not bring
evidence to prove that Gopal Kumar Gupta was not occupying Shop "P".
174 INDIAN LAW REPORTS ALLAHABAD SERIES
11. The Appellate Court, however, has not recorded any finding on this issue. It has
considered the need of the landlord and recorded that his son could not continue in service
and was forced to resign, and was unemployed at the time of filing of the release
application. No exception could be taken to the genuineness of the need of the landlord for
his son Manish Srivastava. After consideration of various judgments on the point that the
landlord is the best judge of his own choice and the tenant cannot dictate his terms, he has
complete freedom to decide his need and to choose as to which of the shop is best suited to 5
him, the need was held bona fide. It was held that there was nothing on record to show that
the son of the landlord was carrying on an independent business. The need to start a business
could not be rejected on the ground that the son of the landlord had taken temporary
employment for some time. Even the landlord, wanted to start his business after retirement
and his need could not be said to be imaginary. Letting a shop prior to filing of the release
application did not mitigate the need.

12. It was further found that the tenant has not been able to establish that since the date
of filing of the release application till date, an alternative shop was available to the landlord
for his need.

13. On comparative hardship, both the Courts below have recorded that the wife of the
tenant got constructed a commercial complex in which she has let out several shops and is
also conducting wholesale business of medicine and as such the comparative hardship also
tilts in favour of the landlord.

14. Challenging these findings, the contention of learned counsel for the petitioner is
that a specific pleading has been taken in the written statement by the tenant that the
landlord is in possession of 6 alternative shop namely Shop "P" in which Manish Srivastava
was doing his business. Gopal Kumar Gupta, has only been projected as tenant by the
landlord in order to assert that the Shop "P" was not available to him on the date of filing of
the release application. The Shop "P" is actually not in the tenancy of Gopal Kumar Gupta,
rather is in vacant possession of the landlord. No documentary evidence has been brought
before the Court below by the landlord to establish his contention. The landlord was under
obligation to establish the facts stated by him in the rejoinder affidavit filed in rebuttal of the
assertion of the tenant regarding availability of the vacant shop in his possession. The
Prescribed Authority has erred in rejecting this contention on the ground that the petitionertenant could not prove by leading evidence that the Shop "P" was vacant. As far as the
Appellate Court is concerned, it has not recorded any finding on this issue rather believed
the averments of the landlord in the rejoinder affidavit.

15. The release application is not bona fide and further that the landlord has not come
with clean hands before the Courts below and, therefore, his need is frustrated.

16. In alternative, argument of the learned counsel for 7 the petitioner is that even if the
averment of the landlord is accepted that shop "P" was given on rent to Gopal Kumar Gupta
in the year 2005, it is a case of deemed tenancy. The tenancy of Gopal Kumar Gupta is void
3 All. Suresh Prasad Vs A.D.J. & Ors.
175
ab initio inasmuch as the said shop was given on rent to Gopal Kumar Gupta without an
allotment order.

17. Elaborating his submission, referring to Sections 11, 12, 13 and 15 of the Act, he
submits that there is a prohibition on letting without allotment order and in case, a tenant is
inducted into a building without following the provisions of the Act, he is not entitled for
any protection. The landlord could not have given Shop "P" on rent in the year 2005 and
moreover, Section 15 of the Act itself casts an obligation upon the landlord to intimate the
vacancy to the District Magistrate. The landlord has violated the provisions of the Act and
he should be punished under Section 31 of the Act. The tenancy of Gopal Kumar Gupta
being void ab initio, the Shop "P" could have been released in favour of the landlord, in
case, the vacancy is intimated to the District Magistrate. In that eventuality, even the alleged
tenant would not be there to contest the release application or the need of the landlord. The
Shop "P" can very well be occupied by the landlord after getting it released.

18. He vehemently argued that this question raised before this Court is required to be
examined in order to look into the genuineness of the need set up by the landlord. The
petitioner is a sitting tenant protected by the Rent Control Act till he is evicted in accordance
with law. Another tenant Gopal Kumar Gupta, cannot win over the petitioner inasmuch as
he is an unauthorized occupant. The petitioner cannot be evicted in a case where the
landlord has committed illegality in giving another shop on rent without an allotment order.
There is a restriction on occupation of a building without allotment or release and Gopal
Kumar Gupta cannot be allowed to occupy the Shop "p". The Rent Control Act is meant for
protection of a tenant who is inducted legally and is not meant for the protection of an
unauthorized occupant. The petitioner is protected by the beneficial provisions as contained
in the Rent Control Act inasmuch as the landlord has chosen a legally inducted tenant as
against an unauthorized occupant and, therefore, the entire exercise undertaken by the
Courts below is liable to be held illegal. The landlord is not entitled to claim for recovery of
possession of the shop which has been let out to the tenant much earlier in time.

19. On the issue of comparative hardship, the learned counsel for the petitioner has not
challenged the findings recorded by the Courts below. The fact that 9 the tenant's wife has
constructed a commercial complex and is running a wholesale medicine shop therein is not
disputed. However, the submission is that the occupation of a non-residential
accommodation by the tenant would be a question relevant only while looking to the
comparative hardship of the landlord and the tenant. The landlord cannot say that merely
because the tenant has acquired another accommodation or has started his business
elsewhere, eviction order is to be passed.

20. In a proceeding under Section 21(1)(a) of the Act in order to evict the tenant the
landlord has to win on both counts i.e. bona fide need and comparative hardship. The
question of need is to be considered first by the Rent Controller Authority and an
independent finding has to be arrived at, only thereafter, the question of comparative
hardship would arise for consideration. The landlord has to establish his need that too bona
176 INDIAN LAW REPORTS ALLAHABAD SERIES
fide by leading cogent evidence. There cannot be any presumption in his favour on this
question merely because the tenant has acquired another non-residential accommodation.

21. Sri Siddharth Nandan, learned counsel for the respondent would rather submit that
admitted facts of the case are that elder son of the landlord namely Manish Srivastava had
closed his "Provision Store" business in the year 2008. Thereafter, he tried his luck 10 but
could not continue in the jobs undertaken by him. After resignation, he had no option but to
start a business. The shop "P" in which business in the name of "Manish Provision Stores"
was being run is now not in vacant state. It was given on rent in the year 2005 to one Gopal
Kumar Gupta who is doing his electricity business therein.

22. He submits that the contention of the petitioner that Gopal Kumar Gupta is an
unauthorized occupant or is only a proxy projected by the landlord to show that the shop "P"
is not in his vacant possession, is incorrect. There is no material on record to establish the
submissions in this regard.

23. On the arguments on the nature of tenancy of Gopal Kumar Gupta, submission is
that in a release matter under Section 21(1)(a), the Court is to determine as to whether there
was another place available to the landlord in vacant state on the date of filing of the release
application to satisfy his need. The nature of tenancy of other occupant is an irrelevant
consideration and arguments in this regard are misconceived.

24. This apart, the tenant does not dispute that his wife had constructed a commercial
complex and is running a wholesale medicine shop therein. The occupation of a nonresidential accommodation by a family member of the tenant is a relevant 11 consideration
on the question of comparative hardship of the parties. As this fact is admitted, at least this
can be concluded that the tenant would not suffer any hardship, in case, the release is
allowed.

25. On the question of bona fide need, the burden was upon the tenant to prove that
there was another shop available to the landlord for the need set up in the release application
more so in view of the categorical submission of the landlord that no other place was
available to him.

26. Having heard learned counsel for the parties and upon a perusal of the material on
record, this Court is of the opinion that the findings recorded by the Courts below are to be
examined only on the question of bona fide need. On comparative hardship, the tenant does
not dispute that his wife owns a commercial complex and occupies a shop in which she is
doing a wholesale medicine business. This is a relevant factor which goes in favour of the
landlord and, therefore, it is concluded that, in case, the shop in question is released, the
tenant would not suffer any hardship.

27. However, merely because the tenant occupies another non-residential
accommodation, no presumption can be drawn on the need of the landlord. The landlord has
to stand on his own legs and to establish that he needed the shop in question for his son.
3 All. Suresh Prasad Vs A.D.J. & Ors.
177

28. The fact that the elder son of the landlord is not doing any business is also not
disputed by the learned counsel for the petitioner. The challenge to the findings on bona fide
need is only on the ground that the landlord possess another shop in the same building and
he has set up Gopal Kumar Gupta as tenant only with the intention to evict the petitioner.
This shop "P" is actually not occupied by Gopal Kumar Gupta as a tenant and, therefore, the
release application filed by the landlord is a result of concealment of a material fact and is
mala fide. From this submission of the learned counsel for the petitioner, at least, it can
safely be concluded that the landlord needed the shop in question for his elder son Manish
Srivastava and his need could not be disputed by the tenant.

29. Now the only question remains as to whether the release application has been filed
mala fide or by concealment of a material fact that a shop is/was available to the landlord in
the building in question to settle his son. Before dealing with this question, alternative
argument raised by the learned counsel for the petitioner is taken first.

30. It is stated that indisputably another shop "P" was given on rent without an
allotment order to Gopal Kumar Gupta in the year 2005 and as such it is a case of deemed
vacancy. Dealing with this submission of learned counsel for the petitioner, it is noteworthy
that 13 even an unauthorized occupant, in a case of a deemed vacancy, cannot be evicted
from a shop without adopting due process of law. Even in a matter of deemed vacancy, a
declaration is required by the Rent Controller Authority after providing due opportunity to
the occupant. In case the shop is declared vacant, the release application filed by the
landlord is to be decided on merits. The landlord has to establish not only his need but 'bona
fide' need for the shop, which is declared vacant. In case the landlord fails to establish his
need 'bona fide', he cannot get the order of release and in that case, the vacant shop is to be
alloted to the applicants/prospective allottees under Section 16 of the Act. In this senario, it
cannot be said that Shop "P", which is stated to be in occupation of Gopal Kumar Gupta, is
available to the landlord in vacant state on the date of filing of the release application.
Admittedly, there is no declaration of vacancy as on date with regard to the Shop "P" and,
therefore, the alternative argument to challenge the order of release urged by the learned
counsel for the petitioner is mis-conceived.

31. There is yet another aspect of the matter that the word "bona fide need" as found in
Section 16(1)(b) and Section 21(1)(a) carries the same meaning. The object and purpose of
Section 16 may be different from that of Section 21 but the expression "bona fide" 14 need
has to be given the same meaning. In both the cases, the landlord has to establish his bona
fide requirement to get the premises released. There is no difference in the degree of "need"
to be established by the landlord in the proceedings under Section 16(1)(b) or Section
21(1)(a). Only benefit before the landlord in a matter under Secton 16(1)(b) is that the tenant
would not be there to contest his need and the comparative hardship of the tenant would not
be seen in such a case. This view finds support from a decision of this Court in Dr. Sita
Ram Gandhi v. IV Additional District Judge, Meerut and Another 1983(1) ARC 782.

32. Relevant paragraph 10 is as under:-
178 INDIAN LAW REPORTS ALLAHABAD SERIES

"10. It may be correct that in Section 16(1)(b) as well as in Section 21(1)(a) the
legislature has used the same expression, i.e., "bona fide requirement". The settled rule
of interpretation of statutes is that an expression used in the same statutes at two places
should be given the same meaning unless the context requires otherwise. Though the
object and purpose of Sec. 16 is different than that of Sec. 21, but in the background or
in the context of these provisions, this expression has to be given the same meaning. The
expression require significance that mere desire on the part of the landlord is not
enough. There should be an element of need and the landlord must show that he
requires the building in question for the purpose for which he has applied. The use of
the expression 'bona fide' is indicative of the intention of the legislature that the
requirement should be common or with good faith, honestly, truely or actually. The
contention of the petitioner's learned counsel that the proceedings of sections 16 and 21
being different, the meaning to be assigned to this expression used in the two sections
should also be different does not appeal to me. The same 15 word may mean one thing
in one context and another in different but hear the context of Sections 16 and 21 is
necessarily the same i.e., the requirement of the land to get his premises released. Mere
assertion on the part of the landlord that he requires additional accommodation in
occupation of the tenant is not sufficient. It is for the court to determine the truth of the
assertion and also whether in is bona fide. The test, as said by the Supreme Court in
Mattulal v. Radhe Lal is objective and not subjective."

33. Now, in the light of the above principle, it is to be seen as to whether the petitioner
is in a better position than that of another tenant namely Gopal Kumar Gupta, in case, it is
accepted that he has been inducted without allotment order. This question has to be
examined in view of the discussion made above which reflects that the petitioner neither
could challenge the need of the landlord nor could win on the question of comparative
hardship.

34. In that eventuality, the petitioner is not entitled to contest on the ground that the
landlord should have chosen an alledged unauthorized occupant in place of a tenant who
enjoys protection of the Act. The protection as alleged by the petitioner is not available to
him in view of the fact that he had constructed a commercial complex in the name of his
wife and is occupying a shop wherein his wife is doing business.

35. The Rent Control Act has been enacted to provide protection to the tenant but not to
unscruplous persons like the petitioner who occupies another place 16 for his business.

36. Thus, it is held that the protection as contended by the petitioner is not available to
him. Consequently, the petitioner cannot win over another occupant of Shop "P", the
arguments in this regard are misconceived. However, in view of the settled position that in
case of release under Section 21(1)(a), the landlord has to establish his need "bona fide"
and, therefore, the fact that he should file the release appliction with clean hands becomes
much more relevant.
3 All. Suresh Prasad Vs A.D.J. & Ors.
179
37. In any case, even if the tenant is not available to contest, the landlord has to stand on
his own legs. No presumption can be drawn with regard to the need being bona fide or the
release application being filed with bona fide intention. It is the duty of the landlord to
establish before the Court below that he has come out with clean hands. No order can be
passed on the application of a person who chooses not to approach the Court with clean
hands. In this scenario, the contention of the landlord that the Shop "P" is occupied by Gopal
Kumar Gupta is required to be examined.

38. The Prescribed Authority, while dealing with this issue has laid the burden upon the
petitioner-tenant and recorded that no evidence could be filed by him to establish his
contention that Shop "P" was not 17 occupied by Gopal Kumar Gupta. Whereas the
Appellate Court, on the basis of affidavit of a witness filed with the affidavit of the landlord
and his son and the rent receipts filed along with the said affidavit, had recorded that the
landlord had proved in evidence that Shop "P" is under the tenancy of Gopal Kumar Gupta.

39. From a perusal of the findings of the Courts below, it is apparent that the specific
dispute raised by the petitioner is that the rent receipts in the name of Gopal Kumar Gupta
were of the period of pendency of the release application. No rent receipt has been filed to
prove that on the date of filing of release application, Shop "P" was in tenancy of Gopal
Kumar Gupta. From the pleadings of the parties it is established that the petitioner had
contested the release application on the ground that Shop "P" was available to the landlord
on the date of filing of the release application and he had concealed this fact. As the landlord
has not approached the Court "bona fide" and, therefore, his need was not real and genuine.
The shop in question could not be released for the need of the landlord.

40. Only after this objection was raised by the tenant in the written statement, the
landlord disclosed this fact in the rejoinder. It is stated therein that the shop has already been
let out to Gopal Kumar Gupta, in the year 2005 and is not in his vacant possession on the
date of filing of release. The Prescribed Authority had 18 erred in laying burden upon the
petitioner to establish that Shop "P" was not given on rent inasmuch as negative evidence
could not be led by the petitioner. The landlord is the best person to establish his assertion
by leading positive evidence that Shop "P" was let out to Gopal Kumar Gupta in the year
2005 that is much prior to the filing of the release application, and is in his vacant possesion.

41. Admittedly, the rent receipts filed by the landlord with the affidavit were of the year
2010 and, therefore, the Appellate Court had erred in concluding that no adverse inference
could be drawn on this question.

42. In any case, no rent reciepts prior to the filing of the release was brought before the
Courts below by the landlord to establish that Shop "P" was given on rent to Gopal Kumar
Gupta, prior to the filing of the release application and he had approached the Court bona
fide.

43. In view of the above, it is concluded that the findings recorded by both the Courts
below on this issue cannot be sustained.
180 INDIAN LAW REPORTS ALLAHABAD SERIES

44. The matter is, therefore, relegated to the lower Appellate Court to decide this issue
afresh after providing due opportunity to both the parties to lead their evidences. For the said
purpose, one month time is provided to both the parties. The petitioner and 19 respondent
No.3 shall file their evidence before the Courts below within the aforesaid period and the
Appellate Court shall decide this limited issue remitted to it expeditiously preferably within
a period of three months from the date of submission of a certified copy of this order.

45. At the cost of repetition, it is held that the findings recorded by the Courts below on
all other questions of need and hardship of the parties have been affirmed. The matter is
remitted to the Lower Appellate Court on the limited issue of occupation and availability of
Shop "P" to the landlord for the need set up by him to establish his son in business.

46. With the above observations and directions, the writ petition is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.02.2016

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Writ A No. - 38583 of 2011

Vinod Kumar Katheria ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Siddharth Khare, Ashok Khare, H.M. Srivastava, Neeraj Srivastava

Counsel for the Respondents:
C.S.C.

CONSTITUTION OF INDIA-Arts. 226, 227, 20(2)

Departmental proceedings- the constitutional protection against double jeopardy contained in
Article 20(2) of the Constitution of India applies only to criminal prosecution and punishment before a
court of law or judicial tribunal and has no application to departmental or disciplinary proceedings,
even if such proceedings are punitive in nature.

Double jeopardy- once the earlier punishment was awarded on the basis of distinct and separate
charges, initiation of subsequent disciplinary proceedings on different and more serious charges does
not amount to double jeopardy.

Punishment earlier awarded- where the subsequent charge-sheet contains serious allegations of
misconduct, including fraudulent mutation of Gram Samaj land in favour of the delinquent employee's
wife and mother-in-law, issuance of false certificates, manipulation of revenue records, financial fraud