Neutral Citation No. - 2025:AHC:140945 Court No. - 37 Case :- WRIT - A No. - 11857 of 2025 Petitioner :- Ajay Kumar Kushwaha Respondent :- Smt. Poonam Malik Counsel for Petitioner :- Om Narayan Dwivedi,Pradeep Kumar Srivastava Counsel for Respondent :- Siddarth Jaiswal Hon'ble Chandra Kumar Rai,J. 1. Heard Mr. Om Narayan Dwivedi, learned counsel for the petitioner and Mr. Siddharth Jaiswal, learned counsel for respondent/ landlord. 2. Brief facts of the case are that landlord initiated the proceeding under Section 21(2) of Uttar Pradesh Regulation of Urban Premises Tenancy Act 2021 hereinafter referred to as Act of 2021 before the rent authority which was registered as case No. 1716 of 2022 under Section 21 (2) of the Act of 2021. The Additional District Magistrate Judicial/ Rent Authority Kanpur Nagar vide order dated 20.10.2023 decided the proceeding in favour of landlord and directed that tenant shall vacat the shop in question within 30 days after payment of due rent to landlord. Appeal under Section 35 of Act of 2021 was filed on behalf of the petitioner/ tenant before the Rent Tribunal/ District Judge Kanpur Nagar which was registered as appeal No. 135 of 2023. In aforementioned appeal, points of determination were framed by the Rent Tribunal. The Rent Tribunal while deciding the aforementioned appeal as held that there was no default in the payment of rent by the tenant to the landlord but while deciding the point of determination No.4, it has been held that need of landlord is bonafide and genuine accordingly the appeal filed by tenant was dismissed vide order dated 14.7.2025 in view of the provisions contained under Section 21 (2) (m) of the Act of 2021 hence this petition on behalf of the tenant/ petitioner for the following reliefs:- "(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 14.7.2025 passed by Rent Tribunal/ Additional District Judge, Court No.9, Kanpur Nagar in Appeal No. 135 of 2023 (Ajay Kumar Kushwaha Vs. Smt. Poonam Malik) and order dated 20.10.2023 passed by Rent Authority/ Additional District Magistrate (Judicial), Kanpur Nagar in case No. 1716 of 2022 (Poonam Malik Vs. Ajay Kumar Kushwaha). (ii) Issue a writ, order or direction in the nature of mandamus directing the respondent as well as the rent authority not to evict the petitioner from his lawful tenancy in premise No. 17/5, Block- 2, Govind Nagar, Kanpur Nagar, consisting of one shop at ground floor, during the pendency of the writ petition before this Hon'ble Court otherwise the petitioner shall suffer irreparable loss and injury." 3. Counsel for the petitioner submitted that proceeding initiated by the landlord/ respondent was illegally allowed by the rent authority without framing proper issues in the proceeding. He further submitted that there was no default in the payment of rent by the tenant and need of the landlord was no bonafide, as such, the order passed by rent authority cannot be sustained in the eye of law. He further submitted that in appeal, the appellate Tribunal has held that there was no default in payment of rent by the tenant to the landlord but while deciding the point of determination no.4, the appellate Tribunal has held that need of the landlord is bonafide and genuine without considering the hardship of the petitioner/ tenant in proper manner. He submitted that impugned order passed by the rent authority as well as appellate Tribunal should be set aside. 4. On the other hand, Mr. Siddharth Jaiswal, learned counsel for the respondent/landlord submitted that there was bonafide need of the landlord accordingly the proceeding was initiated before the rent authority. He submitted that both the authorities have concurrently held that need of the landlord was bonafide and genuine, as such, there is no scope for interference in exercise of jurisdiction under Article 226 of the Constitution of India. He submitted that instant petition filed by tenant should be dismissed. 5. I have considered the arguments advanced by learned counsel for both the parties and perused the records. 6. There is no dispute about the fact that proceeding under Section 21 (2) of the Act of 2021 initiated by the respondent/ landlord has been decided by the rent authority directing the tenant to vacate the shop in question after payment of due rent to the landlord. There is also no dispute about the fact that in appeal, Rent Tribunal has held that there was no default in payment of rent by the tenant to the landlord but need of the landlord is bona fide and genuine accordingly the appeal was dismissed and direction was issued to vacate premises. 7. In order to appreciate the controversy involved in the matter, the point of determination framed in appeal will be relevant for perusal which are as under:- "12. अपपीलपीय पतत्रावलपी व ममूल पतत्रावलपी कके अवललोकन व उभयपक्ष दत्रारत्रा प्रस्ततुत ककयके गयके तकरर कके पररप्रकेक्ष्य मम प्रश्नगत अपपील कके कनररय हकेततु कनम्न कवकनश्चत्रायक कबिन्दतु कनकमरत ककयके जत्रातके हह - (1) क्यत्रा प्रत्यरर्थी व अपपीलत्रारर्थी कके मध्य भवन स्वत्रामपी व ककरत्रायकेदत्रार कत्रा सरबिरध स्रत्राकपत हह? (2) क्यत्रा भवनस्वत्रामपी/प्रत्यरर्थी दत्रारत्रा ककरत्रायकेदत्रार / अपपीलत्रारर्थी कलो कवधधक नलोकटिस प्रकेकषित कक गयपी? (3) क्यत्रा अपपीलत्रारर्थी / ककरत्राएदत्रार दत्रारत्रा भवनस्वत्राकमनपी कलो कनयमत्रानतुसत्रार ककरत्रायत्रा अदत्रा करनके मम कवफल रहत्रा हह, धजसकके आधत्रार पर ककरत्राएदत्रारपी सके बिकेदखलपी कत्रा आदकेश पत्राररत ककयत्रा जत्रा सकतत्रा हह? (4) क्यत्रा अधधकनयम , 2021 कक धत्रारत्रा -21(2) (m) कके प्रत्रावधत्राननों कके अनतुक्रम मम अपपीलत्रारर्थी/ककरत्रायकेदत्रार कलो प्रश्नगत ककरत्रायकेदत्रारपी वत्रालके भत्राग सके आवश्यकतत्रा कके आधत्रार पर बिकेदखल ककयत्रा जत्रा सकतत्रा हह कक नहह? (5) क्यत्रा भमूस्वत्रामपी दत्रारत्रा 'अधधकनयम, 2021' कक धत्रारत्रा-4 कके प्रत्रावधत्राननों कत्रा अनतुपत्रालन ककयत्रा जत्रानत्रा आवश्यक हह यत्रा नहह? यकद हत्राहाँ तलो प्रभत्राव? (6) क्यत्रा वत्राकदनपी दत्रारत्रा 'अधधकनयम, 2021' कक धत्रारत्रा-39 कके तहत पयत्रारप्त न्यत्रायशतुल्क अदत्रा ककयत्रा गयत्रा हह? (7) क्यत्रा कवदत्रान कवचत्रारर न्यत्रायत्रालय / ककरत्रायत्रा प्रत्राधधकरर दत्रारत्रा पत्राररत प्रश्नगत कनररय कदनत्रारककत 20.10.2023 कवधध एरव तथ्यनों कके अनतुकमू ल हह?" 8. Perusal of finding of fact recorded by appellate Tribunal on the point of determination no.4 regarding bonafide need will be relevant which is as under:- " उपरलोक सरपमूरर कवश्लकेषिर एवर मत्राननपीय उचच एवर उचचतम न्यत्रायत्रालय दत्रारत्रा पत्राररत कवधध वयवस्रत्राओर मम उकलधखत प्रत्रावधत्राननों कके अनतुक्रम मम न्यत्रायत्रालय इस मत कक हह कक कवधध कत्रा यह सतुस्रत्राकपत धसदत्रारत हह कक सदत्रावपी आवश्यकतत्रा कत्रा परपीक्षर करनके मम भमूस्वत्रामपी कक इचछत्रा एवर उपयतुकतत्रा सतुसरगत हह तरत्रा ककरत्रायकेदत्रार स्वयर कक शतरर कलो अधधरलोकपत नहह कर सकतत्रा हह। भमूस्वत्रामपी कलो अपनपी आवश्यकतत्राओर कलो अधधकनरर्थीत करनके तरत्रा अपनके कववकेक एवर स्वकेचछयत्रा कके अनतुसत्रार कनवत्रास करनके कके इस अधधकत्रार कलो तततपीय वयकक जहसके ककरत्रायकेदत्रार यत्रा यहत्राहाँ तक कक न्यत्रायत्रालय भपी कनयरकतत नहह कर सकतत्रा। क्यनोंकक यह मकत्रान मत्राधलक कत्रा कवशकेषित्राधधकत्रार हलोतत्रा हह कक वह अपनके मकत्रान मम ककस सतुख- सतुकवधत्रा कके सत्रार रह सकतत्रा हह और ककस प्रकत्रार सके उसकत्रा उपयलोग करके। तदनतुसत्रार अवधत्रायर कबिन्दतु सरखयत्रा-4 अपपीलत्रारर्थी कके कवरद तरत्रा प्रत्यरर्थी कके पक्ष मम कनरर्थीत ककयत्रा जत्रातत्रा हह। " 9. 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." 10. The rent Tribunal while deciding the point of determination no.4 has recorded the finding of fact that need of the landlord is bonafide and genuine considering the ratio of law laid down by this Court as well as Apex Court from time to time. 11. Considering the finding of fact recorded on the bonafide need by rent authority and appellate Tribunal as well as ratio of law laid down by Apex Court in Kanahaiya Lal Arya (Supra), there is no scope for interference under Article 226 of the Constitution of India to interfere with the finding of fact recorded by the rent authority and appellate Tribunal. 12. The writ petition is dismissed accordingly. However, considering the facts and circumstances of the case, the petitioner/ tenant is granted three months time from today to vacate the shop in question subject to the following conditions:- (a) Petitioner/ tenant shall file an undertaking before the rent 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 within period of three months from the date of passing of this order. (b) Petitioner/ tenant shall pay monthly rent of the shop in question to the landlord as mentioned in paragraph nos. 47 of the judgement of rent tribunal in appeal No. 135 of 2023. (c) In the undertaking, the 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 :- 19.8.2025 Vandana Y. Digitally signed by :- VANDANA YADAV High Court of Judicature at Allahabad