M/S Deep Novelties ... vs Baljinder Singh
2021 Latest Caselaw 377 UK

                                                          Reserved judgement


        HIGH COURT OF UTTARAKHAND
                AT NAINITAL
               Writ Petition (M/S) No. 2604 of 2019
M/s Deep Novelties                                   ...Petitioner/tenant

                                      Vs.
Baljinder Singh                                      ...Respondent/landlord

Advocate :     Mr. Pradeep Hairiya, Advocate for the petitioner(s)
               Mr. Neeraj Garg, Advocate for the respondent.

                                                     Reserved on : 11.01.2021
                                                     Delivered on : 22.02.2021
Hon'ble Sharad Kumar Sharma, J.

This is a tenant's writ petition, which is arising out of the concurrent judgements, which had been rendered by both the Courts below, while considering the application which was filed by the landlord/respondent for release of the tenant, by invoking the provisions contained, under Section 21(1)(a) of the Act No. 13 of 1972, whereby the respondent/landlord had sought the release of the tenement shop in dispute, in order to meet out his personal need of expansion of his business and further in order to augment his income so as to enable him, to meet out his family liabilities.

2. The release application, which was instituted by the respondent/landlord on 09.09.2015, and was numbered as PA Case No. 31 of 2015, had more particularly, described the tenement shop in question at the foot of the release application, which is referred to hereunder:-

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3. In the release application, being thus filed by the respondent/landlord on 09.09.2015, the landlord/respondent has come up with the case, that the disputed shop in question was being occupied by the petitioner/tenant in the capacity of a tenant, and the rent, which was payable for the same was at the rate of Rs. 400/- per month, for the user of the property and which included the payment of taxes and other municipal dues, which fell due to be paid towards the disputed tenement. The fact, which was pleaded by the respondent/landlord in the release application, and which remained un-rebutted by the petitioner/tenant, was to the effect that there exists and existed a relationship of the landlord and tenant between them and the tenement in question it constituting to be the part of an old existing construction, which is lying within the municipal area of Nagar Nigam, Dehradun and the provisions of Act No. 13 of 1972 are applicable. These facts are not and were never disputed by the petitioner/tenant.

4. The respondent/landlord. had specifically pleaded, in the release application that his family constitutes of his wife and three grown-up daughters, who are at present of 25, 21 and 12 years respectively, and hence, he contends that since he was doing a business along with his father Mr. Baldev Singh, by assisting him in the business, who was having a business under the name and style of 'Gaylord Emporium', at Paltan Baar, Dehradun, hence he wants himself to be independently engaged, in a business, which he was operating from an adjoining shop, wherein from where, he was dealing with the electronic items of a renowned company 'Samsung', and hence he submitted in the

pleadings, that the shop from where he was doing his business, which falls to be a part of the same building where the property, as described above was situated, he, in order to expand his business, and further in order to conveniently conduct the business, which from a business prospective view requires a larger space as various electronic goods, for example, TV, fridge, microwave, air-conditioners, washing machines and other items, apart from the fact that they are required to be displayed in the showroom to attract probable buyers, it also requires enough space for stocking the goods to be made sellable, from the Samsung business in which the landlord/respondent was engaged in.

5. He, the landlord/respondent submitted that at present, the shop, which is being occupied and from where he was dealing with his electronic goods, was too small, hence he bonafidely required by him for the purposes of expansion of his business and looking to the nature of his business, in which he is engaged, he requires major items to be displayed in the showroom in order to attract the probable purchasers to augment the income from the business, in order to meet up the increasing need of the expenditure of his family, which he has to meet to provide better education to his three major daughters, and also in order to meet up the probable expenditure, which he may have to incur in future for solemnising their marriages.

6. The respondent/landlord, to establish his bonafide requirement, in the release application has submitted, that on account of lack of space available with him in the shop, from where he is carrying his business, he is unable to deal with the business according to the requirements and the norms settled by the Samsung Company, the agency of which, the

landlord/respondent holds and due to the shortage of space, he is unable to meet up the modern trend of business of displaying of articles to attract the probable customers, for which he has contended in the release application, that he needs more space and hence the tenement in question, which is located adjoining shop under the ownership of the landlord/respondent, is bonafidely required by him emergently so as to meet his bonafide requirement and further he submitted that if a comparative analysis is made with regard to the nature of business, in which the petitioner/tenant is engaged with, that of respondent/landlord, his need would be more bonafide and hard pressing for the reason being that the expansion of business, to facilitate to augment the income of the family, to have his own business independently conducted in an accommodation, which is admittedly under the ownership of the landlord/respondent, he has contended that the need of his, as disclosed in the release application, which was filed on 09.09.2015, was more bonafide and hard pressing as compared to the petitioner/tenant.

7. Apart from it, the landlord/respondent, in the release application has specifically submitted that after the purchase of the property in question on 06.08.2003, from its predecessor owner Mr. M.M. Ghai, he had, on number of occasions, orally requested the petitioner/tenant to vacate the premises, but since no heed was paid to the request by the petitioner/tenant, to vacate the premises, and since the landlord/respondent, was facing the acute difficulty, as he had no other alternative place to conduct his business in the manner in which he intended and expected to, he submitted that his need, as expressed in the release application would be more bonafide and hard pressing as compared to the petitioner/tenant.

8. The landlord/respondent had also come up with the case in the release application that, for the purposes of vacating the tenement in question, the tenant/petitioner had been raising an illegal demand of money, in order to vacate the premises, which was not justified at all for the reason, that according to the landlord/respondent, the tenant/petitioner, already has other alternative commercial establishments under his exclusive title, for example, that which was the one, which was expressly pleaded, is a place which was available to him at Sudhhowala, District Dehradun, from where he was earlier operating his restaurant under the name and style of "Singh is King", but later on, when the said business venture of the petitioner/tenant failed, it is contended by the landlord/respondent, that the said property, which is belonging to the tenant/petitioner, had been now let out to Time Institute, from where the Time Institute is using the same as its 'guest house' and sufficient income is accruing to the petitioner/tenant from the said property.

9. The landlord/respondent in the release application has also contended that since district Dehradun, being a growing-up and developing metropolis and a state capital, there are several and sufficient commercial establishments, which are available and shopping complexes, which have been recently developed from where the tenant/petitioner, can easily make an arrangement for his business establishment and can run his business, after making an attempt to look for an alternative accommodation from the newly developed business complexes. Apart from that, the respondent/landlord, in the pleadings had specifically sought for that in an event the tenement in question being vacated, he would be exclusively using it to meet out his personal need as has been expressed above and would not let it out to anyone else in future and has prayed that his release application may be allowed.

10. The respondent/landlord, to the release application, had submitted that at the time when he was purchasing the property i.e. way back, on 06.08.2003, when the sale deed was being executed, by its predecessor owner Mr. M.M. Ghai, who was then running the business under the name and style of 'Quality Restaurant', there, prior to the aforesaid sale of 06.08.2003, the erstwhile landlord had intimated the petitioner/tenant about the sale, and that henceforth since the title of the property in question has been now vested with the respondent/landlord, hence the erstwhile owner Mr. M.M. Ghai, has also intimated by a notice in writing to the petitioner/tenant, that w.e.f. 01.07.2003, and henceforth, he would be required to remit the rent to the respondent/landlord, Mr. Baljinder Singh.

11. The landlord/respondent had submitted that cause of action, for him, to file the release application on 09.09.2015, had arisen because of the fact that when on 06.08.2015, he had issued notices to the tenant/petitioner, demanding the rent for the period of default referred therein, and had also simultaneously terminated the tenancy, with a specific observation, that he does not want to continue with the tenancy of the petitioner/tenant any further, from the tenement in question. Precautionary, the landlord/respondent has also pleaded that since the predecessor owner has already given an intimation about the sale, which was made way back about 12 years, prior to the initiation of the proceedings on 09.09.2015, under Section 21(1)(a) of the Act No. 13 of 1972, no fresh notice, as provided under the proviso to Section 21(1)(a) of the Act was, required, but still precautionarily, the notice was given by the respondent/landlord on 06.08.2015, terminating the tenancy. The contents of the said notice of the landlord/respondent dated 06.08.2015, was denied

by the tenant/petitioner by filing its reply to the notice on 24.08.2015, hence the release application was filed on the grounds of bonafide requirement by the respondent/landlord, which was instituted before the Court of learned Prescribed Authority/Civil Judge (Senior Division), Dehradun, which was later registered as PA Case No. 31 of 2015, Shri Baljinder Singh Vs. Deep Novelties.

12. In response to the aforesaid release application, the tenant/petitioner, had filed a detailed written statement, on 27.04.2016, which was numbered as Paper No. 18C. In the defence, which was developed by the petitioner/tenant, in his written statement it was to the effect that the landlord/respondent is still looking after the business of his father, which was being conducted from Paltan Bazar, Dehradun, under the name and style of 'Gaylord Emporium'. In the written statement, he has contended that since it is a joint business which is being run from the shop No. 8 (old No.2, Paltan Bazar, Dehradun), the need of the landlord/respondent was not bonafide.

13. This Court feels it to be apt to answer this question at this stage itself that what is reflected from the aforesaid pleading is that the tenant/petitioner, in principle, has admitted the fact that the respondent/landlord was working with his father, meaning thereby admittedly, he was not independently engaged in a business, and hence according to the own case of the petitioner/tenant and in that eventuality, if the landlord/respondent, wants to engage himself independently in the business, which has been a consistent and settled law, that it would be deemed to be a bonafide requirement of the landlord/respondent.

14. The tenant/petitioner had submitted in his defence, that the need of an additional accommodation or a spacious accommodation, with regard to the nature of business, in which the petitioner/tenant was engaged, he submitted that the size of the shop, which is presently available with the landlord/respondent, adjoining to the disputed tenement in question, since itself was having a sufficient space, there may not be a bonafide requirement of the landlord/respondent, to get the release of the tenement which was under the occupancy of the tenant/petitioner for expansion of business by the landlord/respondent.

15. In the written statement, the petitioner/tenant has denied the concept and the philosophy of the landlord/respondent regarding the expansion of the business, which was pleaded by the landlord/respondent in his release application as to be the reason for the purposes of augmenting the income of the family, to meet his need of growing daughters and the expenditure of their probable marriages. As far as the said defence which was taken that these needs expressed by the landlord/respondent was concocted and artificial is not believable by this Court, for the reason that every father always has to share and cater with the responsibility of providing the best possible education to his children and has also to cater the responsibility to ensure to discharge his social responsibility too of solemnising their marriages and for which if the plea of expansion of business has been taken by the landlord/respondent, by expressing the need of getting an additional accommodation released, would obviously be bonafide looking to the admitted nature of business in which the landlord/respondent was engaged i.e. dealing with the electronic goods.

16. The ground taken by the petitioner/tenant in the written statement was also to the effect that the disputed tenement shop, sought to be released, is not having a mezzanine floor and the tenement since being a small shop, it may not fulfil the alleged need of expansion of the business, as had been expressed by the landlord/respondent in the release application. This argument too requires to be dealt with at this stage by this Court itself, I am of the view that this contention raised by the tenant/petitioner in the written statement, pertaining to the space available in the disputed tenement in question! whether it would cater and satisfy the need of the landlord/respondent for the purposes of expansion of his business, is none of the concern of the tenant/petitioner, because the tenant cannot under any circumstances, in an advisory capacity enjoy the privilege of advising the landlord, as to the manner and mode in which, he would be expanding his business and as to whether the nature of accommodation available i.e. the tenement in question would suffice the need of the landlord/respondent or not. Besides this, the denial which had been made by the tenant/petitioner pertaining to the additional financial burden and expenditure, which the respondent/landlord has expressed he has to meet, in the release application, in relation to his daughters is not fair, is yet again an aspect which cannot be financially and statistically assessed by the tenant/petitioner, as to in what manner the release application and the release of the tenement itself would assist in meeting out the additional financial burden of the landlord/respondent to meet his personal requirement about the expenditure, he has to incur in relation to his three major daughters i.e. for their better education and marriages.

17. The tenant/petitioner in the written statement had submitted that the landlord/respondent does not, in fact need the tenement

in question and according to him, which is not bona fide, but rather a greed which has been expressed by the landlord/respondent and hence his requirement is not bona fide, though this plea was not substantiated by the tenant/petitioner, in any manner by leading any independent evidence in that regard. He also took a defence, that from the tenement in question, from where he is running a business under the name and style of 'Deep Novelties', he is running the business of gift items and readymade garments and since there are number of partners in the said business, and in an event if the release application is considered and allowed, all the partners of the said business would suffer irreparably and hence contended that the request made by the landlord/respondent for vacating the premises, may be turndown.

18. So far as the plea taken by the landlord/respondent, pertaining to the availability of other alternative accommodations, which were available in the shape of shopping complexes, which were being developed in and adjoining area of the tenement in question, it was being denied by the tenant/petitioner, on the pretext that there is no other alternative commercial property, which was available to him; from where he could conduct his business, while also asserting though yet again, without any evidence, that the landlord/respondent has got several other properties and has a handsome income, his case was that, that fact could be established, because there are number of employees in his showroom, who assisted him in the conduct of his business, hence the need of the landlord/respondent is not bona fide. He contended that the disputed tenement shop, since being the only source of income for him and his partner and in an event if it is released in favour of the landlord/respondent, a greater hardship will befall on them. I am of the view that this

argument would rather run in support of the case of landlord/respondent, pleaded for the purposes of expansion of business, because having number of employees, itself shows the magnitude of the business of the landlord, and the need for its expansion.

19. It would be apt to deal with the mode of procuring an alternative accommodation, which the tenant/petitioner has pleaded in his written statement, particularly, as that which has been raised in the additional plea. He had submitted that since there was a denial by the landlord/respondent to accept the rent, he had remitted the same in the Court itself, by moving an application under Section 30 of the Act No. 13 of 1972, and consequently had remitted the rent for the defaulted period i.e. w.e.f 01.07.2003 to 30.09.2004. Because when he has sent the three money orders dated 11.06.2004, that was alleged to be denied to be accepted by the landlord/respondent, as the money order was returned as it remained unclaimed. He further submitted that the institution of Miscellaneous Case No. 396 of 2004, under Section 30 of the Act No. 13 of 1972, has been decided in his favour by the Court on 25.05.2005, which had permitted the petitioner/tenant to deposit the rent in the Court itself, which he is regularly complying with and hence the plea of default raised by the landlord/respondent may not be accepted, as to be one of the reasons for considering the release application, under Section 21(1)(a).

20. The tenant/petitioner had submitted in the release application, that in terms of the proviso to Section 21(1)(a), of the Act No. 13 of 1972, the landlord/respondent has never intimated about the purchase of the tenement in question and the title of the same having been vested in the landlord/respondent, as a

consequence of the purchase which was made on 06.08.2003. I am of the view that the purpose of intimation contemplated under the Act, of the proposed purchase which is made by the newly inducted landlord/respondent, it altogether intents to meet out a distinct and a different purpose, it is in order to enable the tenant/petitioner, to know, as to whom the rent has to be actually disbursed by him and not otherwise and this purpose, and in this particular case, has been met with when the previous owner Mr. M.M. Ghai, has already intimated about the sale of 06.08.2003, to him and has already requested him to remit the rent to the landlord/respondent. Hence, this entire factual scenario meets up the very legislative intent and purpose of intimation of purchase/sale, to be given under the proviso to Section 21(1)(a) of the Act, because the fact of existence of relationship of the landlord and tenant has not being denied and hence this plea will be of no relevance as far as the defence taken by the petitioner/tenant in the written statement from the said prospective is concerned and that too in the circumstances of the present case where release was filed in 2015, almost after 12 years, of purchase by landlord/respondent in 2003.

21. The tenant/petitioner has tried to carve out a case with regard to the necessity of issuance of a notice, prior to the initiation of the proceedings under Section 21(1)(a), as it has been provided under the 2nd proviso to the Act No. 13 of 1972 . In fact, the said legislative purpose was also met with for the reasons already dealt with above pertaining to the notice of 06.08.2015, which was admittedly served by the respondent/landlord on the tenant/petitioner, which was even replied by him on 24.08.2015, and then initiation of the proceedings by filing the release on 09.09.2015 under Section 21(1)(a), after the purchase being made on 06.08.2003, does not

at all defeat the embargo of Section 21(1)(a) of the Act No. 13 of 1972.

22. Another defence, which was taken by the tenant/petitioner that there was no bona fide requirement by the landlord/respondent because he has got other businesses of his father, under the name and style of 'Gaylord Bakers' and Gaylord Express (restaurant), admittedly as per the pleadings itself it belongs to the father and availability of that was not to be treated as to be a property, belonging to the landlord/respondent. Even the plea of sufficiency of space available with the landlord/respondent, on the pretext that there is a verendah, in front of the shop of the landlord/respondent adjoining to the tenement in question, is not acceptable by this Court. Because verendah itself will not fall to be the part of the shop of the landlord/respondent, from where he was doing his business, and alternatively verandah cannot be said to appropriately meet the permanent need of expansion of business.

23. A very peculiar pleading, which has been raised by the tenant/petitioner, in order to substantiate his defence which was taken about the availability of other property with the landlord/respondent, I am of the view that, wherein once, he takes a defence that the landlord/respondent, has got other property available with him, then it is exclusively his responsibility to establish by proof, because the burden of proof in that eventuality shifts on him as it was the tenant/petitioner, who was raising a defence of availability of other accommodation with the landlord/respondent, which was to be discharged by him and the plea taken by the tenant/petitioner, that he is looking for the details and as soon as it is being made available to the petitioner, he will be filing the same on record, is

yet again an artificial and concocted plea, not substantiated by any evidence which was adduced by the petitioner/tenant, in the proceedings which were held before both the Courts below.

24. The plea taken of an alternative accommodation available with the landlord/respondent at 37A, Race Course, Dehradun, according to the tenant/petitioner himself that cannot be compared and compelled, to meet the commercial need as it has been expressed by the landlord/respondent in the release application, because it is his own case that the said accommodation is a joint Hindu family accommodation, where all the family members are residing and it a residential property and is not a commercial accommodation.

25. The tenant's plea pertaining to the nature of business, which he has developed, in relation to Rule 16 of Rule 1972, with regard to the aspect of goodwill, which he contends, has developed, since the tenant/petitioner claims that he was doing his business from the disputed tenement for last over 30 years, has got no relevance, because Rule 16, as per the judicial pronouncements, the impact of Rule 16, has always to be determined based upon the nature of business being conducted from the disputed tenement, and apart from that it has been held to be not a mandatory provision, but rather directory in the nature where consideration of goodwill also has to be one of the aspects, which has to be considered by the Court, depending upon the independent facts and circumstances of each case and particularly the nature of business being carried, is not of such a nature where Rule 16 has to be strictly construed.

26. Yet another plea, which was taken by the tenant/petitioner, though without an evidence on record that there was a demand

raised by the landlord/respondent for enhancement of the rent from Rs. 400/- per month; to Rs. 40,000/- per month. Since the same was not accepted by the tenant/petitioner, hence he contends that it has resulted into filing of the release application is irrelevant as the basis of which were never substantiated by any evidence in the proceedings which was held before the Court below.

27. Under the rent laws, emanating from the provisions contained under Act No. 13 of 1972, as applicable in the State of Uttarakhand, as a consequence of the implications of the Reorganisation Act, it has made it mandatory, that on filing of the release application the tenant has to look for an alternative accommodation, and if there is a failure on his part to prove to have looked for an alternative accommodation, then the comparative hardship would always tilt towards the landlord. In order to substantiate about the bona fide efforts made by the tenant/petitioner to look for an alternative accommodation, on initiation of the release application under Section 21(1)(a) of the Act, it is always the tenant's responsibility to bring on record by evidence that he had actually made a sincere effort to look for an alternative accommodation and there was failure to get one. Attempt to look for an alternative accommodation, as it has been settled that it has to be an attempt, which has had to be under the recognized judicial mode of acquiring the property under the Act No. 13 of 1972 itself and not merely on the basis of the pleading and the pleading of failure to get an alternative accommodation.

28. This aspect has been settled by this Court itself in a judgement as reported in 2014 (2) UD, 101, Suresh Chandra @ Suresh Pal vs. Smt. Sarna Devi & another. Para 11 to 13 of the said judgment are quoted hereunder :-

"11) Learned lower appellate court did not find favour with the inference of the Prescribed Authority that there was no bona fide need or comparative hardship in favour of the landlady. It cannot be expected from two growing male children to live with their mother in the same room, who have attained majority during the pendency of eviction proceedings. Their dates of birth were 22.01.1988 and 08.04.1990. They also need some privacy. The mother also requires some privacy. Three grownups cannot conveniently live together in one room. One of the son of the landlady is married. Learned lower appellate court took into account all these aspects to hold that the landlady had no other alternative accommodation. The tenants-writ petitioners did not lead any evidence, which could show that they ever attempted to make a search for an alternative accommodation or ever attempted to seek allotment of any accommodation. There was, therefore, inaction on the part of the tenants in searching for an alternative accommodation by seeking allotment or otherwise searching for an accommodation for them. Non-availability of alternative accommodation to the tenants in itself is no good ground to reject the application of the landlady to release her building.

12) Lower Appellate Court, therefore, find cogent reasons to allow the appeal of the landlady and in setting aside the order of Prescribed Authority, whereby her application for release was dismissed.

13) This Court has considered the elements which are required to be considered for release under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. This Court is, therefore, of the opinion that the findings arrived by the learned lower appellate court are not perverse. The reasons are sound. No interference is called for in the same."

29. On the basis of the aforesaid principle of the judgement referred to above, in the matters of Suresh Chandra (Supra) and even as per the plea of the tenant/petitioner, himself, to the effect that he had approached the office of the Rent Control Eviction Officer to find the details of the vacant accommodation available, but he could not get it, will in itself as per the opinion of this Court will not be relevant, because merely visiting the office of the Rent Control Eviction Officer, without filing any specific

application for allotment of any accommodation under Section 12 of the Act, merely collecting the information, from the office of the Rent Control Eviction Officer, cannot be treated as to be a positive attempt, which was in fact sincerely made by the tenant/petitioner to look for an alternative accommodation after filing of the release application by the respondent/landlord on 09.09.2015. Besides this, the plea of financial crunch and the dependents of the partners of the "Deep Novelties", will have no relevance, so far as the release application is concerned, because its yet again a settled fact that every release and its judicial outcome is bound to caste, some hardship on the tenant, but that itself cannot be a reason to deny release.

30. The landlord/respondent, in support of his contention has filed affidavit paper No. 22A, as well as paper No. 49A, 60A, 61A i.e. the affidavit of Dildar Singh and various others documents in support of his release application. On the other hand, tenant/petitioner had adduced the evidence paper No. 26A, 29A, 32A, 37A and 64A and an affidavit of one Mr. Pitamber Prasad, as paper No. 41A in support of his defence as had been taken in the written statement.

31. The Court of learned Prescribed Authority, after hearing the parties to the proceedings and after appreciating the evidence on record and hearing the matter on its own merits had allowed the release application by the judgement dated 24.04.2018, thereby directing the tenant/petitioner to vacate the premises within the time specified therein.

32. Being aggrieved against the said judgment, the petitioner/tenant had preferred an Appeal being Rent Control Appeal No. 4 of 2018, Deep Novelties Vs. Baljinder Singh, under

Section 22 of the Act No. 13 of 1972. It is during the pendency of the Rent Control Appeal, that the petitioner/tenant, contends that he had filed an application for appointment of Civil Court Amin in order to inspect the tenement shop and the shop which was available with the landlord/respondent, in order to substantiate and facilitate his argument to discharge the burden of his arguments regarding the sufficiency of the space available with the landlord, which was objected by the respondent/landlord and ultimately the appellate Court too, after considering the rival contentions had dismissed the Appeal by the judgement dated 20.08.2019, as rendered in Rent Control Appeal No. 4 of 2018. It is against these two concurrent judgements, the present writ petition has been preferred by the petitioner/tenant.

33. The petitioner/tenant in his writ petition under Article 227 of the Constitution of India, has come up with a very peculiar case in order to contend that the judgment of the Courts below are perverse and erroneous and contrary to the evidence on record, as the material evidence was not considered. The grievance of the petitioner was that, his affidavit which was filed by way of paper No. 57C, and particularly, he has made reference to para 4 of the said affidavit, which he contends that it was not considered by the learned Courts below. He further contends that paper No. 49A, was also not considered in its true spirit, as far as its averments contained in para 42 is concerned. There are two distinct and independent pleas, which are raised by the tenant/petitioner, with regard to non-consideration of the aforesaid two affidavits. Paper No. 57C, was being derived to be extracted to be read in relation to the property 37A, Race Course, Dehradun; the pleading raised in para 4 of the said affidavit, will be of no relevance because admittedly the plea raised therein, it was a joint residential accommodation,

which was being occupied by the landlord/respondent and his family members and its availability, the space in it and number of family members residing cannot be comparatively read for the purposes of the need as expressed in the release application of commercial establishment and the expansion of business, as pleaded by the landlord/respondent in the release application, hence it will have no relevance and any impact or bearing on merits on the decision, which has been rendered by both the Courts below.

34. The justification of this finding of non relevancy of consideration of the plea raised in para 4, is that because the Act No. 13 of 1972, itself provides that the bona fide requirement expressed for the residential or commercial establishment, has had to be independently dealt with under a different set of circumstances and set of rules and both cannot be intermingled in its consideration and hence the availability or non availability of the accommodation 37A, which admittedly according to the tenant/petitioner himself was residential accommodation, cannot be read in parlance, with the need of the commercial accommodation, as expressed by the landlord/respondent, which was required for the expansion of business, to augment the income of family. That is why the rules too lay down, different parameters for consideration of need of commercial and residential accommodation.

35. Apart from it, the very foundation of the aforesaid affidavits raised by the tenant/petitioner, it was under the pretext that the uncle of the landlord/respondent Mr. Bhupendra Singh, has left the accommodation i.e. 37A, Race Course, which was the residential accommodation and had started residing separately, yet again the need of the respondent/landlord and that Mr.

Bhupendra Singh, the uncle of landlord/respondent, resides separately had got no nexus with regard to the need which was expressed in the release application by the landlord, hence it was an irrelevant plea which had no bearing, on an adjudication of the release application itself on its own merits.

36. The tenant/petitioner's plea about a wrongful consideration of paper No. 40A, which yet again relates to the partition of a property, was a fact which was required to be proved by him, which was not discharged, because the partition of the residential property and its fact of having being recorded in the municipal records was yet again not proved by the petitioner/tenant in his evidence, which was adduced by him before the Courts below.

37. Yet another plea which had been raised under the pretext of the alleged non-consideration of paper No. 57C, as raised by the petitioner/tenant that the said accommodation after being vacated by his uncle Bhupendra Singh, is being utilized by the petitioner/tenant as his godown, is a fact which was not proved/established by law. Apart from it, the logic behind it is the affidavit paper No. 60ka, filed by the landlord/respondent in response to the paper No. 57C, which was concentrating upon the accommodation located at 37A, Race Course, had been sufficiently answered by the landlord/respondent and its user as a godown was not proved or established by the tenant/petitioner, hence Court agrees with the finding and raising concurrently recorded by both the Courts below.

38. In view of the aforesaid findings, which have been concurrently considered by both the Courts below in quite detail, this Court is of the view that the judgments since are based on concurrent finding of facts, and writ Courts cannot re-appreciate

the finding of facts recorded concurrently and for the reasons given above, do not call for any interference under Article 227 of the Constitution of India. Consequently, the writ petition lacks merit and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 22.02.2021 Mahinder/