# Kamlesh Kumar Gupta v. Special Judge, Dacoity Affected Area, Banda and another

- **Citation:** (2001) 2 ILRA 201
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-kumar-gupta-v-special-judge-dacoity-affected-area-banda-and-another-39853
- **Pages:** 6

## Text

2All] Kamlesh Kumar Gupta V. Special Judge, Dacoity Affected Area, Banda and another 201
5.
Nothing in this rule shall apply to -
(a) government servants engaged on
contract;
(b) government servants not in wholetime employment;
(c) government servants paid out of
contingencies; and
(d) persons employed in work-charged
establishments."

22. The aforesaid Rule provides that
the services of a Government servant in
temporary service shall be liable to
termination at any time by notice in
writing given either by the Government
servant to the appointing authority, or by
the
appointing
authority
to
the
Government servant. Under Paragraph 2 it
is provided that the period of such notice
shall be one month. This makes it clear
that
the
services
of
a
temporary
Government servant could be terminated
at any time by giving one month's notice
to the Government servant.

23. In view of the discussions made
above, it is clear that the petitioners could
terminate the services of the respondent
no. 2 by giving one month's notice and
the
order
of
termination
dated
6th
February, 1968 was perfectly valid and
legal. The Tribunal has committed an
error in allowing the claim petition filed
by the respondent no. 2 and setting aside
the said order of termination. Therefore,
the impugned judgement dated 4.2.1980,
passed by the Tribunal in liable to be
quashed.

24. In the result, the petition
succeeds and is allowed. The impugned
judgement dated 4.2.1980 is quashed.

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By the Court

1. The petitioner who admittedly is
the tenant in a portion (shop) of premises
no. 1856 situated in Mohalla-cantonment,
Station Road, Banda has challenged the
order dated 3.8.2000 passed by the Trial
Court in S.C.C. suit no. 4 of 1998 and the
order dated 19.1.2001 passed in Revision
Application no. 48 of 2000 under section
25 of the Provincial Small Causes Courts
Act. it is prayed that both the orders being
illegal
and
without
jurisdiction
be
quashed and the respondent no. 3 be
commanded not to disturb with the
possession of the petitioner over the
tenanted accommodation.

2. At the initial stage of filing of the
present petition, appearance was put in on
behalf of the land-lord respondent no. 3
through
Sri
Rajesh
Tandon,
Senior
Advocate
assisted
by
Sri
Pankaj
Srivastava. He made a statement that the
petition be finally disposed of on merits
on the basis of the material available on
record. Sri M.A. Qadeer, learned counsel
for the petitioner did not have any
objection
to it and consequently I
proceeded to dispose of the petition on
merits at this stage.

3. Sri Qadeer took two distinct pleas
to assail the decree passed in S.C.C. suit
no. 4 of 1998 as affirmed in S.C.C.
Revision no. 48 of 2000; firstly that the
provisions of the U.P. Act no. 13 of 1972
(hereinafter called the Act of 1972) are
applicable to the tenanted accommodation
and since the petitioner has cleared all the
dues, as demanded by the respondent no.
3 within the period stipulated in the
composite notice of demand and to quit,
no order of eviction could be passed, as
the
possession
of the petitioner is
statutorily protected under the provisions
of Section 20(2)(a) of Act of 1972, and
secondly that even if it be held that the
Act of 1972 did not apply to the tenanted
accommodation, the contract of tenancy
being in contravention of the provisions
of section 11, 13 and 17 of the Act of
1972, it cannot be enforced by the landlord in view of the Full Bench decision of
this Court in the case of Nutan Kumar
and others versus Second Additional
District Judge, Banda and others 1993
All. C.J. 721.

4. Both the above submissions were
repelled by Sri Rajesh Tandon appearing
on behalf of respondent no. 3.

5. After having heard learned
counsel for the parties, I find that the
2All] Kamlesh Kumar Gupta V. Special Judge, Dacoity Affected Area, Banda and another 203
crucial question for determination in the
present petition is whether the provisions
of Act of 1972 are applicable to the
tenanted accommodation or not? To
begin with, it may be mentioned that it is
a common case of the parties that the
building bearing no. 1856 situated in
mohalla-cantonment, Station Road, Banda
has been in existence for more than 20
years prior to the commencement of the
Act. The case of the land-lord respondent
no. 3 is that the disputed tenanted portion
has been constructed anew in the year
1990 and after the reconstruction of the
new portion, it was let out to the
petitioner on 1.5.1990.

6. Sri Qadeer took me in the
historical retrospect of the litigation with
regard to premises no. 1856 which was
earlier under the tenancy of one Jhon Mal
Dayal Das, against whom late Narendra
Nath Mitra, father of respondent no. 3 had
instituted S.C.C. suit no. 838 of 1969 for
eviction. In that suit, controversy was
raised whether the provisions of U.P. Act
no. 3 of 1947 were applicable to the
accommodation under the tenancy of Jhon
Mal Dayal Das. It was held that the Act of
1947 did not apply and a decree of
eviction was passed against Jhon Mal
Dayal Das. Inspite of the decree of
ejectment, Jhon Mal Dayal Das was
successful
in
getting
the
tenanted
accommodation allotted in his favour in
the year 1976. After protracted litigation,
the allotment order was cancelled on
1.1.1979 and the land-lord came in
occupation of the portion which was in
possession of Jhon Mal Dayal Das. In this
manner
it
is
well
established
that
provisions of Act of 1972 apply to
premises no. 1856 of which Jhon Mal
Dayal Das was the tenant and against
whom a decree for eviction was passed. In
view of the above facts, Sri Qadeer
maintained
that
since
the
tenanted
accommodation in occupation of the
petitioner is part of the old premises no.
1856, the provisions of Act of 1972 would
be attracted. He, however, made a
reference to the fact that the land-lord had
taken permission for putting up a new
slab on the existing walls and the
permission was readily accorded by the
Municipal Board on 27.7.1989, and since
the tenanted accommodation has come
into being by putting up the slab on the
old walls, the provisions of the Act of
1972 would be applicable as it was only a
minor part of the addition to the existing
building.
Sri
Qadeer
founded
his
submission on the provisions of section
2(2) Explanation I (c) of the Act of 1972
which reads as follows:
"2. Exemption from operation of Act of
1972: (1) Nothing in this Act of 1972
shall apply to the following, namely:
(a)........................(f) ...............
(2) ..................................

Explanation I :
(a).......................
(b).......................
(c) where such substantial addition is
made to an existing building that the
existing building becomes only a minor
part thereof the whole of the building
including the existing building shall be
deemed to be constructed on the date of
completion of the said addition."

7. The attention of this Court was
invited by Sri Qadeer to the Plan
(annexure-2 to the petition) submitted by
the petitioner for approval on 24-7-1989
in which a R.B. Slab was proposed to be
put upon existing walls of ground floor. In
support of his contention that putting up a
slab on the existing walls would not take
out the tenanted accommodation from the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
204
operation of the Act of 1972, reliance was
placed by Sri Qadeer on the decision in
A.I.R. 1953 AJMER 54 (1) (Vol. 40 C.N.
59) in the case of Durgah Khwaja Sahib
v. Ram Gopal Mehra. That was a case
pertaining to the interpretation of the
provisions of Section-7 of Delhi and
Ajmer Merwara Rent Control Act. In that
case previously there was one shop which
caught fire, then the walls above a height
of 4 1⁄2 feet were demolished. The one
shop previously existing was converted
into three shops by erecting two partition
walls. The foundation remained as it was.
Up to a height of 4 1⁄2 feet the walls
remained as they were except for new
plastering. In the background of these
facts it was held that it was a case of
improvement as the various additions,
alterations or improvement were made on
the
previous
existing
structure
and
complete structure was not demolished or
replaced. This case does not apply to the
facts of the present case. The other case
relied upon on behalf of the petitioner is
Shyam and others vs. III Addl. District
Judge Orai 1984 (1) A.R.C. 241, in which
it was observed that certain changes made
in the existing shop shall not exempt it
from the operation of the Act , in the
absence of further finding that the shop
was
got
demolished
and
a
fresh
construction was made, or that the
changes made in the shop were such as
were contemplated by clause (c) of
Explanation I.

8. In Ashchraj Lal versus Laxmi
Chand Sharma 1978 (2) All India Rent
Control Journal page 195 it was held that
as the major portion of the demised
premises was an old construction the
tenant was entitled to the benefit of
section 39 of Act of 1972. In another case
Om Prakash and others versus The VII
Addl. District Judge Aligarh and others
1994 (23) A.L.R. page 19 it was held that
alteration made in garage and laying of
new roof and affixing shutters would not
amount to a new construction and shall
continue to be governed under the
provisions of Act of 1972.

9. I have waded through all the
above decisions and find that for one
reason or the other, observations made
therein are not squarely applicable to the
case in hand.

10. There is no doubt about the fact
that the burden of proof lies heavily on
the land-lord to show that a particular
building
stands
exempted
from
the
operation of the Act. In the instant case
concurrent finding of fact has been
recorded by the two Courts below that the
tenanted
accommodation
came
into
occupation of the petitioner after it was
reconstructed in the year 1990. The
petitioner was its first occupant. A firm
finding of fact has been arrived at by the
Trial Court after appraising the evidence
on record led by the parties that all the
walls of the tenanted accommodation are
new ones, the original level was also
changed, by the side of the one of the
walls a new staircase was put up. There
has been a substantial addition in relation
to the tenanted accommodation. In an
existing building the addition of the
tenanted accommodation was completely
new. The Revisional Court though was
not required to reassess and reappraise the
evidence, has also held that the tenanted
accommodation
was
the product of
reconstruction.

11. The expression "substantial
addition" occurring in section 2 (2)
Explanation I (c) includes not merely the
2All] Kamlesh Kumar Gupta V. Special Judge, Dacoity Affected Area, Banda and another 205
addition of wholly a new construction, but
where such substantial addition is made to
an existing building that the existing
building becomes only a minor part
thereof
the
whole
of
the
building
including the existing building shall be
deemed to be constructed on the date of
completion of the said addition.

12. The above observation came to
be made in the case of Jagdish Prasad
vs. District Judge Ghaziabad and
others 1980 All. L.J. 229. The matter also
came up for consideration in a subsequent
case of Phool Chand versus III rd Addl.
District Judge Agra and others 1995 (2)
A.R.C. page 549, in which it was
observed
that
the
word
substantial
addition as used in clause (c), Explanation
(1) to Section 2 (2) of the U.P. Act no. 13
of 1972 will take within its ambit not
merely the addition of wholly a new
construction but also the alteration of an
existing
building
into
a
new
accommodation by remodelling it, which
may include the use of some parts of the
old structure.

13. Sri Qadeer placed reliance on the
fact that the Plan (annexure-2 to the
petition) indicates that the land-lord has
proposed to put up a slab on the existing
four walls and, therefore, the finding of
fact recorded by the two Courts below
was manifestly erroneous. It is true that
the plan was got sanctioned for putting up
a slab, but nevertheless the fact remains
that the land-lord respondent no. 3 had
lowered the floor, constructed the walls a
new and put up a side stair case and
capped them with a new slab. This part of
the evidence of the landlord has been
accepted as believable by the Trial Court
as well as the Revisional Court. Sri
Tandon pointed out that even if no plan
was got sanctioned but as a fact the
landlord has carried out the work of new
construction provisions of Act of 1972
would not be applicable and in support of
his submission he placed reliance on the
unreported decision dated 23.5.1995 of
this Court in Civil Revision no. 861 of
1991 Abdul Gafoor versus Vakilur
Rehman.

14. In my quest to reach the truth I
have scrutinised the evidence as well as
the findings recorded by the Trial Court
and as affirmed by the Revisional Court
and find that they do not suffer from any
infirmity or legal defect. On factual
matrix it stands well established that the
tenanted accommodation was constructed
during the period 1989-90 and after the
completion
of
the
construction,
the
petitioner was let into possession as a
tenant on 1.5.1990 and thus the provisions
as Act of 1972 were not applicable to the
tenanted accommodation.

15. Now it is the time to consider the
plea taken by Sri Qadeer that the
agreement of lease between the petitioner
and the respondent no. 3 being void is in
unenforceable in law. In support of his
submission Sri Qadeer placed reliance on
a Full Bench decision of this Court in the
case of Nutan Kumar and others versus
Second
Additional
District
Judge,
Banda and others 1993 All.C.J. 721. The
provisions of sections 11,13 and 17
falling in Chapter III of the Act of 1972,
were interpreted in the said decision and it
was held that the agreement of lease
between the land-lord and the tenant in
contravention of the provisions of the Act,
would
be
void
and
therefore
unenforceable. The submission of Sri
Qadeer that the petitioner cannot be
evicted in view of the agreement which is
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
206
void, does not go too far. The ratio of
Nutan
Kumar's
case
(supra)
is
applicable only if the provisions of the
Act are found applicable to the tenanted
accommodation. In view of the concurrent
finding of fact that the provisions of the
Act are not applicable to the tenanted
accommodation,
reference
to
Nutan
Kumar's case (supra) is otiose. The suit
has been filed within ten years of the
construction
of
the
tenanted
accommodation after determining the
tenancy under section 106 of the Transfer
of Property Act. Since the relationship of
land-lord and tenant subsists between the
parties, the suit for ejectment could be
maintained in the Court of Judge Small
Causes Court and a regular suit for
ejectment was not required to be filed.

16. Both on legal and factual matrix
the petition fails. It is devoid of any
merits and substance. It is accordingly
dismissed without any order as to costs.

17. After delivery of this judgement
Sri M.A. Qadeer learned counsel for the
petitioner prayed that some time may be
allowed to the petitioner to vacate the
accommodation in respect of which the
order for ejectment has been made. Sri
Rajesh Tandon learned counsel for the
contesting respondent no. 3 states that he
has no objection if some reasonable time
is allowed to vacate the accommodation.

18. After having heard the learned
counsel for the parties I find that it would
be proper if the petitioner is permitted to
vacate the disputed accommodation in
respect of which the order of ejectment
has been passed and has been affirmed in
revision by 31st December, 2001. In case
the petitioner does not deliver vacant
possession on or before the said date, the
decree shall become executable according
to law.

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