# Asad Ali v. Special Judge E.C. Act/District Judge Hardoi & Ors

- **Citation:** (2016) 4 ILRA 744
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-21
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asad-ali-v-special-judge-e-c-act-district-judge-hardoi-ors-43683
- **Pages:** 7

## Headnote

4 All. Asad Ali Vs Special Judge E.C. Act/District Judge Hardoi & Ors.

745
The petitioner challenged the orders dated 12.02.2013 (Prescribed Authority) and 08.03.2016 (Appellate
Court), which allowed an eviction application filed by Respondent No. 3 under Section 21(1)(a) of the U.P. Act
No. 13 of 1972.

Property History:
The dispute concerns Shop No. 124/1 in Hardoi. Respondent No. 3 and his brothers purchased the property in

## Text

744 INDIAN LAW REPORTS ALLAHABAD SERIES
are divided, in such cases in the manner- 70% consists of written test, 20% of shorthand/typing and
10% for retrenched persons wherever applicable. Executive order however has created a news
scheme by excluding the typing/shorthand test, stipulated under Rule 6(c) and making it only a
qualifying test, so as to exclude from computation of total marks to be determined for merits and
confining merit to the written test only and wherever applicable, marks obtained by candidates
belonging to retrenched employees category. This is clearly inconsistent with and in the teeth of
statutory rules and executive order, i.e. Government Order dated 03.10.2001, to this extent, is ultra
vires and could not have been followed. The authorities were bound to follow Rules of 2001 strictly
and nothing else.

21. The above discussions makes it clear that merit list has not been prepared by
respondents strictly in accordance with Rules 2001 in respect of posts where typing/ shorthand or
both were necessary for the reason that marks obtained by respective candidates under Rule 6 (c)
have not been included in preparing merit list. Non selection of petitioners on the basis of such
faulty merit list can not be upheld.

22. In the result, writ petition is allowed. Respondents are directed to prepare merit list by
including marks in typing/stenography test, as the case may be, in the manner stated in Rule 6(a)
and (c), as observed above, and thereafter proceed further. This exercise shall be completed within
three months from the date of production of a certified copy of this order before the authority
concerned.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.04.2016

BEFORE

THE HON'BLE DEVENDRA KUMAR UPADHYAYA, J.

Rent Control No. - 8362 Of 2016

Asad Ali ...Petitioner
Versus
Special Judge E.C. Act/District Judge Hardoi & Ors. ...Respondents

Counsel for the Petitioner:
Shri Ravi Nath Tilhari, Shri Shiv Nath Tilhari

Counsel for the Respondents:
Shri Anurag Narain

Held -

Introduction:
4 All. Asad Ali Vs Special Judge E.C. Act/District Judge Hardoi & Ors.

745
The petitioner challenged the orders dated 12.02.2013 (Prescribed Authority) and 08.03.2016 (Appellate
Court), which allowed an eviction application filed by Respondent No. 3 under Section 21(1)(a) of the U.P. Act
No. 13 of 1972.

Property History:
The dispute concerns Shop No. 124/1 in Hardoi. Respondent No. 3 and his brothers purchased the property in
1992. Following a family partition, this specific shop fell into the share of Respondent No. 3.

Bona Fide Need: Respondent No. 3, a registered lawyer since 1977, sought the shop to establish a legal
chamber. He argued that his residential space was insufficient and lacked professional office space.

Tenant's Defense: The petitioner (tenant) contested the claim, arguing that the landlord had enough space
behind his house to build a chamber. He also claimed he never received a legal notice and that the notice
served was "defective."

Lower Court Rulings: Both the Prescribed Authority and the Appellate Court ruled in favor of the landlord,
finding a genuine bona fide need and directing the tenant to vacate.

The "Six-Month Notice" Argument:
In the High Court, the petitioner argued that the eviction application was premature. Under the Act, a sixmonth notice is required, but the landlord filed the application only four months after the notice.

The Principle of Waiver:
The High Court rejected the petitioner's technical argument. Citing Supreme Court precedent, the Court held
that because the petitioner did not actively press this "premature filing" plea during the trial, he had
effectively waived his right to raise it now.
Statutory Interpretation: The Court further noted that if a landlord has owned the property for more than
three years, the strict requirement of a six-month notice loses its significance, supporting the landlord's
position.

Scope of Article 227:
The Court emphasized that under Article 227, it cannot interfere with concurrent findings of fact (like bona
fide need and hardship) unless there is clear perversity, which was not found here.

Final Order:
The petition was dismissed. However, the Court granted the petitioner six months (until 30.10.2016) to vacate
the shop, provided he continues to pay rent and complies with previous orders.
Petition Dismissed.

Case laws Cited:-
1.Martin and Harris Ltd. Vs. VIth Additional District Judge, 1997 Law Suit (SC) 1564

2.Anwar Hasan Khan vs. District Judge, Shahjahanpur and others, [2000 (18) LCD 403]

(Delivered by Hon'ble Devendra Kumar Upadhyaya, J.)

1. Heard learned counsel for the petitioner and Shri Anurag Narain, learned counsel
appearing for respondent nos.3 to 6.
746 INDIAN LAW REPORTS ALLAHABAD SERIES
2. This petition filed under Article 227 of the Constitution of India impeaches the validity
of the judgment and order dated 12.02.2013, passed by the prescribed authority, whereby the
application moved by respondent no.3 under Section 21(1)(a) of U.P. Urban Buildings (Regulation
of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as 'the U.P. Act No.13 of 1972') for
eviction has been allowed.

3. The petitioner also challenges the order dated 08.03.2016, passed by the appellate court,
whereby the Rent Appeal preferred by the petitioner against the order of the prescribed authority,
has also been dismissed.

4. The present dispute is in respect of a shop, namely, Shop No.124/1, situate in MohallaManglipurva, Hardoi. One late Ram Shankar was landlord of the premises in question, who
executed the sale-deed in respect of Shop No.124/3 in favour of father of opposite party no.3 to 6.
On 24.07.1992 opposite party nos.3 to 6 purchased the shops, namely, Shop No.124/1 and 124/2.
After the death of the father of opposite parties no.3 to 6, a partition took place amongst three
brothers and the shop in question i.e. Shop No.124/1 came in the share of opposite party no.3.

5. Opposite party no.3 thereafter filed an application under Section 21(1)(a) of U.P. Act.
No.13 of 1972 for releasing the said Shop No.124/1 on the ground of bona fide need. The opposite
party no.3 in his application preferred by him before the prescribed authority under Section
21(1)(a) of U.P. Act. 13 of 1972 inter alia stated that on account of the family partition which took
place amongst three brothers on 25.12.1992, he is the owner of the premises in question and further
that after the partition only one room and a store has come to his share. It was further pleaded by
respondent no.3 in the said application that he is a lawyer by profession having been registered with
U.P. Bar Council in the year 1977. The registration number with Bar Council was also shown by
the petitioner as 274/1977. It was also stated by respondent no.3 that the residential accommodation
which had fallen in his share after the family settlement/partition is not enough to accommodate his
needs and further that at his residential house there is no space available which he can use as
chamber for his profession. Opposite party no.3 further stated in the application that on 12.04.2007
a legal notice was also served on the petitioner for vacating the premises and since even after the
receipt of the notice, the petitioner did not vacate the premises, the cause of action accrued to him,
for filing the application under Section 21 (1)(a) of U.P. Act. No.13 of 1972.

6. The claim of the opposite party no.3 put forth by him in the said application was
contested by the petitioner by filing a written statement wherein the averments made by the
opposite party no.3 in the application were denied and it was also suggested that the opposite party
no.3 is having enough land on the back side of the residential house where he can extend the
residential house and get the requisite room constructed for running his chamber. The petitioner
also denied that the claim of the opposite party no.3 is based on any bona fide need. It was also
averred by the petitioner that he did not receive any notice and the notice being relied on by the
opposite party no.3 is unlawful and on the basis of such defective notice, the application could not
have been instituted by opposite party no.3.
4 All. Asad Ali Vs Special Judge E.C. Act/District Judge Hardoi & Ors.

747
7. The prescribed authority after considering the material and evidence available on record
allowed the said application moved by the opposite party no.3 by means of the judgment and order
dated 12.02.2013, whereby the petitioner was directed to vacate the premises in question within
thirty days and hand over the possession thereof to opposite party no.3. It was also directed that the
respondent No.3 shall pay rent for the period of six months to the petitioner.

8. As observed above, the said order passed by the prescribed authority was appealed
against by instituting the appeal under Section 22 of the Act. The appellate court while reiterating
the findings recorded by the learned prescribed authority has rejected the Rent Appeal preferred by
the petitioner by means of the judgment and order dated 08.03.2016. It is these two orders passed
on 12.02.2013 and 08.03.2016 respectively by the prescribed authority and the appellate court
which are under challenge in these proceedings.

9. The submission advanced by the learned counsel for the petitioner primarily is that the
proceedings under Section 21(1)(a) of the Act were instituted and initiated by the opposite party
no.3 before expiry of statutory period of notice as envisaged in the first proviso appended to
Section 21(1)(a) of U.P. Act. No.13 of 1972, which clearly prohibits that any such application under
the said provision shall not be entertained unless the landlord has given a notice in that behalf for
the bona fide not less than six months before such an application. Submission of leaned counsel for
the petitioner is that the period mentioned in the notice dated 12.04.2007 is thirty days and further
that before expiry of the period of six months from the date of notice, the application for releasing
of the premises in question was filed under Section 21(1)(a) of U.P. Act. No.13 of 1972 by the
opposite party no.3 on 20.08.2007 i.e. after expiry of a period of four months only. His submission,
thus, is that since the proceedings by opposite party no.3 under Section 21(1)(a) of U.P. Act. No.13
of 1972 were instituted and initiated before expiry of the period of six months from the date of
notice as such the entire proceedings drawn and conducted by the learned prescribed authority is a
nullity and hence, the judgment and order based on such proceedings are null and void and hence
not sustainable.

10. Per contra, Shri Anurag Narain, learned counsel for the respondent nos.3 to 6 has
submitted that, in fact, the plea of instituting the proceedings by the opposite party no. 3 before
expiry of the statutory period of notice of six months, though was taken in the written statement
filed by the petitioner, however, the same was not pressed and as such the petitioner waived his
right to press that plea and in these proceedings before this Court, the petitioner cannot be
permitted to take the plea for the first time.

11. Learned counsel for the petitioner relying upon a judgment of Hon'ble Supreme Court
in the case of Martin and Harris Ltd. Vs. VIth Additional District Judge, reported in 1997 Law
Suit (SC)1564, has submitted that if there is a statutory prohibition for instituting the proceedings
under Section 21(1)(a) of the Act before expiry of the period of six months from the date of notice,
the learned trial court would not have proceeded on the application so preferred by respondent no.3.
He further argued that the present matter, any deviation thereof will render the proceedings
nugatory and since statutory period of notice had not expired before the application was preferred
748 INDIAN LAW REPORTS ALLAHABAD SERIES
by respondent no.3, the proceedings ought to have been rejected by the prescribed authority on the
said ground alone.

12. Shri Anurag, on the other hand, relies on the same judgment of Hon'ble Supreme Court
in the case of Martin and Harris Ltd. (supra) and has submitted that the argument being advanced
by the learned counsel for the petitioner appears to be based on misreading of the said judgment.

13. Having considered the submissions made by the learned counsel for the petitioner and
respondent no.3 to 6, I find that the submissions being made by the learned counsel for the
petitioner are liable to be rejected and I am unable to agree with his contentions.

14. Hon'ble Supreme Court in the case of Martin and Harris Ltd.(supra) has considered
the effect of prohibition enunciated in the first proviso appended to Section 21(1)(a) of the Act and
has clearly held that in a case where the plea of said prohibition is, though taken, but not pressed, it
will amount to waiver of the plea by the tenant. The submission of learned counsel for the
petitioner that the principle of waiver will have no application in the present case in view of the fact
that the plea of the application being hit by non-compliance of the statutory period of notice was
not taken by the tenant in this case before the prescribed authority, is also erroneous for two
reasons; firstly in para of 28 of the written statement this plea has been taken that the notice was
unlawful and secondly even if it is presumed that the plea was not taken, the same puts the case of
the tenant in this matter at a worse footing than the case of the tenant in the case of Martin and
Harris Ltd.(supra) inasmuch as in Martin and Harris Ltd.(supra) the tenant though had taken the
plea but had subsequently not pressed and in this case, as is being submitted by the learned counsel
for the petitioner, this plea was not taken at all.

15. A careful reading of the judgment rendered by Hon'ble Supreme Court in the case of
Martin and Harris Ltd.(supra) would convince that the ratio of the said judgment would have
complete application so far as the facts of the present case are concerned in both the situations; (1)
by either not taking the plea of institution of the proceedings under Section 21(1)(a) of the Act
before expiry of the period of six months from the date of notice or (2) by taking the plea and
subsequently not pressing it. In both the exigencies, it would certainly amount to waiver of the plea
as has been held by Hon'ble Supreme Court in the case of Martin and Harris Ltd.(supra). Hon'ble
Supreme Court, no doubt, has held in the said case that the provision mentioned in the proviso
appended to Section 21(1)(a) of the Act is mandatory in nature and if any such application is filed
before expiry of the period of six months from the date of notice, the application has to be treated
premature, however, elaborating further, Hon'ble Supreme Court in the said case has held that by
not pressing the plea of the application being premature, the tenant had waived his right to take
such a plea. Hon'ble Supreme Court in the said case has also considered and reflected yet another
very crucial and important aspect of the matter i.e. in case the plea of the application being
premature is taken coupled with the provisions contained in Order VII Rule 11 of CPC, the
application could have been rejected by the prescribed authority at the outset which would have
given liberty to the landlord to institute the proceedings afresh after expiry of the statutory period
of notice as contemplated by the proviso appended to Section 21(1)(a) of the Act.
4 All. Asad Ali Vs Special Judge E.C. Act/District Judge Hardoi & Ors.

749
16. For the reasons indicated above, in my considered opinion, the reliance placed by the
learned counsel for the petitioner on the case Martin and Harris Ltd.(supra) is misconceived and
the arguments based thereon, thus, merit rejection which are hereby rejected.

17. Learned counsel for the respondents has also stated that a careful reading of the
provisions contained in proviso appended to Section 21(1)(a) of the Act indicates that in case the
premises which is the subject matter of these proceedings changes hands and subsequent purchaser
or the subsequent landlord instituting the proceedings under Section 21(1)(a) of the Act after expiry
of a period of three years from the date of sale, the statutory period of six months notice looses its
significance.

18. In this regard reference may be had to yet another judgment of this Court rendered in
the case of Anwar Hasan Khan vs. District Judge, Shahjahanpur and others, reported in [2000
(18) LCD 403], wherein it has clearly been held that considering the language used in the 'First
Proviso' and also keeping in view the object of providing for the said proviso, one fails to find any
good reason for attaching the condition of six months notice even after three years period after
purchase. Para 44 of the said judgment is quoted below:-

 "Considering the language used in the 'First Proviso' and keeping in mind the object for
providing the said proviso, one fails to find any good reason for attaching the condition of six
months notice even after three years period after purchase, as suggested by the petitioner's counsel.
There could possibly be no object for providing such an objection on the landlord."

19. Thus, the aforesaid submission of learned counsel appearing for respondent nos.3 to 6
also assumes relevance to repell the submissions made by learned counsel for the petitioner and to
disagree with the same.

20. Learned counsel appearing for the petitioner thereafter has submitted that the findings
recorded by the learned prescribed authority as affirmed by the learned appellate court in respect of
the bona fide need and comparative of hardship are also not correct.

21. I am afraid while hearing the petition under Article 227 of the Constitution of India in a
matter where finding of facts are concluded by both the courts below, this Court can interfere
unless, of course, any apparent perversity in the findings can be pointed out. Having perused the
judgment and order passed by the prescribed authority as well as the appellate court, it cannot be
said that the findings suffer from perversity to the extent that the same may be warranted to be
interfered with in these proceedings under Article 227 of the Constitution of India.

22. In the result, the petition deserves to be dismissed, which is hereby dismissed.

23. At this juncture, learned counsel for the petitioner submits that the petitioner may be
given adequate and appropriate time to vacate the shop in question and to hand over its peaceful
possession to the respondent no.3 as the petitioner will be required to shift his business.
750 INDIAN LAW REPORTS ALLAHABAD SERIES
24. Considering the said prayer, it is provided that the petitioner shall vacate the shop in
question within a period of six months from today i.e. on or before 30.10.2016 and shall also hand
over the peaceful possession thereof to the respondent no.3. He shall continue to pay the rent to the
respondent no.3 and shall also pay the amount in terms of the judgment and order passed by the
prescribed authority. The respondent No.3 will also pay the amount indicated by the Prescribed
Authority to the petitioner.

25. It is further provided that any violation or disobedience of this order by the petitioner
will render him liable for contempt of this Court.

26. There will be no order as to costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.04.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No.- 9029 Of 2016

Dinesh Kumar Chaudhary ...Petitioner
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioner:
Shri Chandra Bhushan Pandey, Shri Abhinav Bhattacharya, Ms Preeti Pandey

Counsel for the Respondents:
A.S.G., Shri Manish Jauhari

Held -
Paragraph 1: Background and Challenge
The petitioner challenged orders dated March 23, 2016, and July 15, 2015, issued by the respondent Oil
Corporation. These orders canceled the petitioner's selection for a retail outlet dealership in Siddharth Nagar,
U.P. The petitioner argued that he provided genuine documents and did not willfully misrepresent facts.

Paragraph 2: The Grounds for Cancellation

Following a field verification, the Corporation canceled the petitioner's top-ranked (Serial No. 1) empanelment.
The reason was a discrepancy in the petitioner's bank account status, which the Corporation labeled as a
"misrepresentation" intended to unfairly boost his merit score.

Paragraph 3: Procedural History and Petitioner's Argument