Neutral Citation No. - 2025:AHC:135673 Court No. - 37 Case :- WRIT - A No. - 51237 of 2011 Petitioner :- Sunil Kumar Respondent :- Smt. Rajeshwari Devi And Others Counsel for Petitioner :- Anil Sharma,Komal Mehrotra Counsel for Respondent :- Gyanendra Bahadur Rai,Jitendra Kumar,Pankaj Agrawal Hon'ble Chandra Kumar Rai,J. 1. Heard Mr. Atul Dayal, learned Senior Counsel assisted by Mr. Komal Mehrotra, learned counsel for the petitioner and Mr. Mangla Prasad Rai, learned Senior Counsel assisted by Mr. Jitendra Kumar, learned counsel for the respondent. 2. Brief facts of the case are that dispute relates to shop situated at Mohalla Kooncha Parmeshwari Das, Mistonganj, District- Rampur. The petitioner is tenant of the shop and opposite parties are the landlord of the shop in question. Landlord / opposite parties filed an application under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of letting, Rent and Eviction ) Act, 1972 (hereinafter referred to as " U.P. Act No.13 of 1972") for release of the shop in question on the ground that the same was required by Dr. Sanjeev Kumar, a doctor in Homeopathy for setting up a polyclinic. Petitioner/ tenant contested the release application on the ground that the need setup by the landlord is not bona-fide as the accommodation in the same building was lying vacant and available for the landlord. Respondents / landlord filed their replication to the written statement filed by the petitioner/ tenant. Prescribed authority by the judgement / order dated 17.5.2008 allowed the release application. Against the order of the prescribed authority dated 17.5.2008, petitioner/ tenant filed an appeal under Section 22 of U.P. Act No.13 of 1972. Appellate Court / Additional District Judge Court No.2, Rampur vide order dated 20.8.2011 dismissed the appeal filed by the petitioner/ tenant. Hence this writ petition for the following relief: "issue a writ, order or direction in the nature of certiorari thereby calling for the record and quashing the orders dated 20.8.2011 (Annexure No.9) and 17.5.2008 (Annexure No.7) passed by the Additional District Judge, Court No.2, Rampur and Prescribed Authority/ Civil Judge (J.D.), Rampur respectively" 3. This Court entertained the matter on 6.9.2011 and granted interim order to the effect that the petitioner shall not be evicted from the premises in dispute provided petitioner deposit Rs.2,000/- per month as rent/ damages for use of occupation of the disputed premises. 4. In pursuance of the order dated 6.9.2011 parties have exchanged their affidavits. 5. Learned Senior Counsel for the petitioner submitted that the order passed by the prescribed authority releasing the shop in question in favour of the landlord is wholly illegal as the need setup by the landlord was not bona-fide. He further submitted that the landlord has already obtained possession of a shop from one Iqbal tailor who was also tenant of the same landlord, as such, in view of the provisions contained under Section 16 (2) (c) of U.P. Act No.13 of 1972, the possession of the shop which has been delivered to petitioner from another tenant should be allotted to petitioner/ tenant or to satisfy the need of the landlord regarding which the release application has been filed in respect to shop of the petitioner/ tenant. He further submitted that the landlord had filed a release application no.11 of 1996 on the basis of same need which was not pressed by the landlord, as such, the application for release filed by the landlord cannot be allowed. He further submitted that the appellate Court has also committed an error in deciding the appeal under Section 22 of U.P. Act No.13 of 1972 without considering the points setup in appeal. He further submitted that both the impugned judgement should be set aside and application for release filed by the respondent/ landlord should be rejected. 6. On the other hand, learned Senior Counsel for the respondents/ landlord submitted that the release application filed by the respondents / landlord has been rightly allowed by the prescribed authority considering the bona- fide need of the landlord in proper manner. He further submitted that the appeal filed by the petitioner / tenant has also been dismissed considering the each and every aspect of the matter, as such, no interference is required against the concurrent judgement passed by the prescribed authority as well as appellate authority in respect to the proceeding under Section 21 (1) (a) of the U.P. Act No.13 of 1972. He further submitted that the prescribed authority has framed three issues in the proceeding under Section 21 (1) (a) of the U.P. Act No.13 of 1972 and recorded the finding of fact that there was relationship of landlord / tenant between the parties as well as the need setup by the landlord is bona-fide coupled with the fact that the comparative hardship is in favour of the landlord in comparison to tenant. He further submitted that the finding of fact recorded by the prescribed authority has been further examined by the appellate Court and it has been held that there was proper consideration of the case regarding bona-fide need of the landlord with respect to the shop in question. He further submitted that no interference is required in the matter and Writ petition is liable to be dismissed. 7. I have considered the argument advanced by learned counsel for the parties and perused the records. 8. There is no dispute about the fact that the petitioner is tenant of the shop in question and respondents are landlord of the same. There is also no dispute about the fact that proceeding under Section 21 (1) (a) of the U.P. Act No.13 of 1972 initiated by the respondents/ landlord was allowed by the prescribed authority and appeal under Section 22 of U.P. Act No.13 of 1972 filed by the petitioner/ tenant was dismissed by the appellate Court / Additional District Judge. 9. In order to appreciate the controversy involved in the matter, perusal of all the three issues framed by the prescribed authority in the proceeding for release in respect to shop in question will be relevant, which are as under: " ममनन उभय पक कन ववददन अधधवकद कक बहस ससनन तथद पतदवलन कद भलन भदभवत पररशनलन वकयद। धदरद-21(1) ए उ०प०अधधवनयम 13 सनन 1972 कन अनतररत यदचनरण कन दसकदन वनमसवकर त पदथरनद पत वनसतदररत करतन समय नयदयदलय कक वनमनधलधखत तनन वबनदसओभ पर वनषकरर वयक करनद आवशयक हह- 1. कयद यदचनरण व ववपकन कन मधय दसकदन मदधलक व वकरदयनददरन समबनध हह? 2. कयद यदचनरण कक वववदवदत दसकदन कक सददवन आवशयकतद हह? 3. यदचनरण कद दसकदन वनमसवकर त पदथरनद पत सवनकदर हकनन पर तसलनदतमक कवठनदई ववपकन कन पक मम हकरन तथद पदथरनद पत वनरसत हकनन पर तसलनदतमक कवठनदई यदचनरण कन पक मम हकरन?" 10. Prescribed authority while considering three issues framed in the proceeding as quoted above has considered the evidence adduced by both the parties and has recorded categorical finding of fact that there was relationship of landlord and tenant between the parties and need setup by the landlord was bona-fide and genuine. The finding of fact has also recorded by the prescribed authority while deciding the issue no.3 to the effect that comparative hardship is in favour of the landlord in comparison to tenant. 11. The appellate Court has also considered the case of the parties while deciding the appeal filed by the tenant and has held that there is no illegality in deciding the issue relating to the need as well as comparative hardship of the parties in respect to the shop in question, accordingly, there is no illegality in the exercise of appellate jurisdiction by the appellate Court. 12. On the question of bona-fide need of the landlord, the Apex Court in the case reported in 2025 (3) ADJ 308, Kanahaiya Lal Arya vs. Md. Ehshan & Others has held that the landlord is a best judge to decide which of his property should be vacated for satisfying his particular need and tenant has no role in dictating as to which premises of the landlord should get vacated for his need alleged in the suit for eviction. Paragraph nos.11,15 & 16 of the judgement of Apex Court rendered in Kanahaiya Lal Arya (supra) will be relevant, which are as under: "11. In the case at hand, the appellant-landlord may be having some other properties under tenancy of various persons but once he has decided to get the suit premises vacated for the bona fide need of establishing an ultrasound machine for his two unemployed sons, he cannot be forced to initiate such a proceeding against the other tenants. It is for the appellant-landlord to take a decision in this regard and once he has decided to get the suit premises vacated, no error or illegality could be pointed out in his decision. Secondly, it has come on record by clear finding of the court of first instance that the suit premises is the most suitable accommodation for establishing an ultrasound machine. The reason being that it is situated adjacent to a medical clinic and a pathological centre and is the most appropriate place for establishing any medical machine. Moreover, the appellant-landlord has also proved his capacity to invest in purchasing/establishing an ultrasound machine and that his two sons are unemployed and as such the suit premises is required to establish them in business and to augment the family’s income. Therefore, the bona fide need of the appellant-landlord stands duly established. 15. As would be evident from the above compromise, the decree for partial eviction from the premises occupied by the respondents-tenant was partially decreed in Second Appeal No.40/1983 on 31.03.1988 for the bona fide need of the appellant-landlord to establish his brother-in-law. The said need was altogether a different need. The said decree of the year 1988, even if not used for the purpose intended, it would not affect the rights of the appellant- landlord which accrues to him in the year 2001. The need of the appellant- landlord for getting the suit premises vacated for establishing his two sons has to be seen on the date of filing of the suit i.e., 28.11.2001. On the said date, the need of the appellant-landlord stands established. The said need would not get eroded by any earlier decree of eviction of the year 1988. 16. Accordingly, in view of the facts and circumstances of the case, the appellant-landlord has proved his bona fide need for the suit premises. The appeal is allowed and the impugned judgment and order dated 18.08.2022 and 25.09.2006 of the High Court and the First Appellate Court respectively are set aside. The suit of the appellant- landlord stands decreed." 13. Considering the ratio of law laid down by Apex Court in Kanahaiya Lal Arya (Supra) as well as finding recorded by the prescribed authority / appellate authority, there is no scope for interference against the impugned judgement / order passed by the prescribed authority dated 17.5.2008/ appellate authority dated 20.8.2011. 14. The writ petition is dismissed. However, considering the facts and circumstances of the case, the petitioner/ tenant is granted nine months time to vacate the shop in question subject to the following conditions: (a). Petitioner/ tenant shall file an undertaking before the prescribed authority within period of three weeks from today to the effect that he will handover peaceful possession of the shop in question to the respondent / landlord. (b). Petitioner / tenant shall pay rent / damages of the shop in question to the landlord @ Rs.2,000/- per month as fixed under the interim order dated 6.9.2011 passed by this Court till the date petitioner/ tenant vacates the shop in question. (c). In the undertaking, petitioner / tenant shall also state that he will not create any third party interest in the shop in question. (d). In case of default of any of the condition mentioned above, protection granted by this Court shall automatically vacated. (e). In case shop in question is not vacated as per the undertaking given by the petitioner/ tenant, he shall be liable for contempt. Order Date :- 11.8.2025 Rameez Digitally signed by :- RAMEEZ AHMED High Court of Judicature at Allahabad