# M/S Saharanpur Estates And Construction & Ors v. Rent Control and Evicition Officer/ A.D.M., Saharanpur & Ors

- **Citation:** (2019) 3 ILRA 245
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-16
- **Case number:** Writ A No.50249 of 2015
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-saharanpur-estates-and-construction-ors-v-rent-control-and-evicition-44843
- **Pages:** 5

## Headnote

C.S.C., Sri Manish Kumar Nigam, Sri
Manoj
Kumar
Rajvanshi,
Sri
N.C.
Rajvanshi, Sri Some Narayan Mishra.

A. Civil Law-Rent control/Tenancy - Uttar
Pradesh Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972:
Section 29A; Partnership Act, 1932 -
Section
69(2)
-
Suit
filed
by
an
unregistered firm is maintainable for
enforcement of statutory right u/s 29A(5)
of the U.P. Act XIII of 1972?

The suit filed by an unregistered firm is not
barred u/s 69(2) of Act, 1932, if it is based on
a statutory right or a common law right. S.
29A(5) gives a statutory right to the landlord
or the tenant to move an application before
the District Magistrate to determine the annual
rent payable. The application filed was for
enforcement of statutory right and not for
enforcement of a right arising out from rent
agreement/contract. (Para 9, 10)

Petition allowed (E-4)

Matter Remitted

Precedent followed: -

## Text

3 All. M/S Saharanpur Estates And Construction & Ors. Vs. Rent Control and Eviction
 Officer/A.D.M.,Saharanpur & Ors.
245
Writ Petition No. 43960 of 2012) was
cancelled vide order dated 2.4.2012,
which was admittedly received by the
said petitioners in the month of October,
2012. The said order was also brought on
record of the said writ petition along with
the counter affidavit filed in the month of
November, 2012.

51. For the reasons best known to
the petitioners therein, they did not
challenge the said order within a
reasonable
period
of
time.
The
amendment
application
filed
on
25.3.2014, therefore, cannot be allowed to
assail the said order as no explanation has
been offered by the petitioners for
inordinate delay in seeking amendment.

52. For the four petitioners in Writ
Petition No. 35705 of 2013 who are claiming
appointment on the basis of the list dated
21.10.2011, relevant is to note that they had
approached this Court in the year 2013-14
for appointment against four vacancies
which occurred in the year 2012-13. Their
prayer for appointment against the future
vacancies
made
after
a
period
of
approximately two years from the date of
declaration of result, is not acceptable.

53. For the above discussions, both
the writ petitions are found devoid of
merits and hence dismissed.
----------

(2019)11ILR A245

ORIGINAL JURISDICTION
 CIVIL SIDE
DATED: ALLAHABAD 16.10.2019

BEFORE
THE HON'BLE SURYA PRAKASH KESARWANI , J.

Writ A No.50249 of 2015

M/S
Saharanpur
Estates
And
Construction & Ors. ...Petitioners
Versus
Rent Control and Evicition Officer/ A.D.M.,
Saharanpur & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ajay Kumar Singh, Sri Ashish Kumar
Singh, Sri Vinod Kumar Srivastava.

Counsel for the Respondents:
C.S.C., Sri Manish Kumar Nigam, Sri
Manoj
Kumar
Rajvanshi,
Sri
N.C.
Rajvanshi, Sri Some Narayan Mishra.

A. Civil Law-Rent control/Tenancy - Uttar
Pradesh Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972:
Section 29A; Partnership Act, 1932 -
Section
69(2)
-
Suit
filed
by
an
unregistered firm is maintainable for
enforcement of statutory right u/s 29A(5)
of the U.P. Act XIII of 1972?

The suit filed by an unregistered firm is not
barred u/s 69(2) of Act, 1932, if it is based on
a statutory right or a common law right. S.
29A(5) gives a statutory right to the landlord
or the tenant to move an application before
the District Magistrate to determine the annual
rent payable. The application filed was for
enforcement of statutory right and not for
enforcement of a right arising out from rent
agreement/contract. (Para 9, 10)

Petition allowed (E-4)

Matter Remitted

Precedent followed: -
1. M/s Raptakos Brett & Company Ltd. Vs Ganesh
Property, AIR (1998) SC 3085 (Para 10)

2. M/s Haldiram Bhujiawala & anr. Vs. M/s
Anand Kumar Deepak Kumar & anr. AIR
(2000) SC 1287 (Para 10)
3. Punjab & Sindh Bank Vs M/s Manoram
Agencies & ors. (2008) 4 ADJ 248 (Para 10)
246 INDIAN LAW REPORTS ALLAHABAD SERIES
Present petition challenges order dated
13.04.2015, passed by Rent Control and
Eviction Officer, Saharanpur, dismissing
application u/s 29A.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. )

"Whether in view of the provision
of Section 69(2) of the Partnership Act,
1932,
an
unregistered
firm
can
maintain
a
suit
or
a
case
for
enforcement of statutory right under
Section 29A(5) of the U.P. Act XIII of
1972" is one of the main questions
involved in the present writ petition.

1. Heard Sri Ashish Kumar Singh,
learned
counsel
for
the
applicantlandlords/
petitioners
and
Sri
N.C.
Rajvanshi,
learned
senior
advocate
assisted by Sri Vishesh Rajvanshi, learned
counsel for the tenant-respondent Nos.2
to 6.

FACTS:-

2. Briefly stated facts of the present
case are that the original owner and
landlord of the disputed immovable
property being khasra plot No.800, area
0.584
hectares
situate
in
village
Daramilkana Ander Hadud Saharanpur,
was one Sri Raja Ram son of Babu Moti
Ram who had let out the disputed
property to the respondent No.2 herein by
a registered rent deed dated 12.12.1945
for a period of 50 years from 01.01.1946.
Thus, the period of tenancy expired on
31.12.1995. After the death of the original
owner and landlord Sri Raja Ram, the
disputed property was inherited by his
successors,
namely
the
applicantpetitioner No.2 and proforma respondent
Nos.7, 8 and 9. Thus, they became the
owners and landlords of the disputed
property. The owners and landlords
formed a partnership firm, i.e. the
petitioner No.1 herein by a partnership
deed dated 01.09.2012 which includes the
owners and landlords also as partners.
The partnership firm and the owners and
landlords filed an application under
Section 29A of the U.P. Urban Buildings
(Regulation
of
Letting,
Rent
and
Eviction) Act, 1972 (hereinafter referred
to as 'U.P. Act XIII of 1972') before the
Rent Control and Eviction Officer,
Saharanpur, which has been dismissed by
the impugned order dated 13.04.2015, not
on merits but on maintainability on two
grounds - firstly, applicant-petitioner
No.1 - partnership firm is not a registered
partnership firm and, therefore, the
partnership deed dated 01.09.2012 is not
admissible in evidence under Section
69(2) of the Partnership Act, 1932
(hereinafter referred to as 'the Act 1932')
and,
secondly,
the
landlord-tenant
relationship is not proved.

3. Aggrieved with the aforesaid
order dated 13.04.2015 passed by the
Additional District Judge (A)/ Rent
Control and Eviction Officer, Saharanpur,
the applicant-landlords/ petitioners have
filed the present writ petition.

SUBMISSIONS:-

4. Learned counsel for the
applicant-petitioners submits as under:

(i) Provisions of Section 69(2)
of the Act 1932 has no application in the
present set of facts inasmuch as the
application under Section 29A of U.P.
Act XIII of 1972, was filed by the
applicant-petitioners for enforcement of a
statutory right. It was not an application
3 All. M/S Saharanpur Estates And Construction & Ors. Vs. Rent Control and Eviction
 Officer/A.D.M.,Saharanpur & Ors.
247
for enforcement of a contract. Even the
rent contract under the rent deed dated
12.12.1945, has expired on 31.12.1995.

(ii)
The
applicant-petitioner
No.1 is the partnership firm consisting of
true owners and landlords of the disputed
property. The applicant petitioner No.2 is
admittedly co-owner and landlord of the
disputed property. Further, it is admitted
case of the tenants-respondents that they
were paying rent to the petitionerlandlords. Therefore, the tenant-landlord
relationship was proved on record. But,
without examining the facts, the Rent
Control and Eviction Officer abruptly
drawn conclusion that there is no
landlord-tenant
relationship.
Such
a
finding is perverse and therefore, deserves
to be set aside.

(iii) The impugned order is
wholly
arbitrary
and
illegal
and,
therefore, it deserves to be quashed.

5. Sri N.C. Rajvanshi, learned
senior
advocate
admits
that
the
applicant-petitioner No.2 is the co-owner
and the landlord of the disputed property
but supports the impugned order. He
submits that there was a rent agreement
between
the
landlord
and
tenantrespondents
dated
12.12.1945
and,
therefore, the application filed by the
applicant-petitioners shall be deemed to
be an application for enforcement of a
right under a contract dated 12.12.1945.
He supports the impugned order.

DISCUSSION AND FINDINGS:-

6. I have carefully considered the
submissions of the learned counsels for
the parties.

7. Undisputedly, the applicantpetitioner No.2 herein is the co-owner and
the landlord of the disputed property. He
is also partner in the petitioner No.1 firm
along with other co-owners. It is also not
in dispute that the respondent-first set was
the tenant of the disputed property and
was paying rent under the rent agreement
dated 12.12.1945 to the owners and
landlords. Thus, the finding of the Rent
Control and Eviction Officer in the
impugned
order
that
landlord-tenant
relationship could not be proved by the
applicant-petitioners, is perverse and
wholly without application of mind.
Therefore, this finding is set aside.

8. By the impugned order, the
application of the applicant-petitioners
under Section 29A of U.P. Act XIII of
1972 has been dismissed also on another
ground that the partnership deed dated
01.09.2012, is not admissible and the
application is not maintainable in view of
the provisions of Section 69(2) of the Act
1932. This finding of the Rent Control
and Eviction Officer, Saharanpur is not
wholly illegal but also shows his poor
understanding of
the
provisions
of
Section 69(2) of the Act 1932 and Section
29A of the U.P. Act XIII of 1972.

9. Sub-Section (2) of Section 69 of
the Act 1932 provides that "No suit to
enforce a right arising from a contract
shall be instituted in any court by or on
behalf of a firm against any third party
unless firm is registered and persons
suing are or have been shown in the
Register of Firm as partners in the firm."
Thus the bar created under Sub-Section
(2) of Section 69 of the Act 1932, is only
in respect of enforcement of a right
arising from a contract. It does not bar
filing of a suit by an unregistered firm for
248 INDIAN LAW REPORTS ALLAHABAD SERIES
enforcement of statutory right. Section
29A(5) of the U.P. Act XIII of 1972,
gives a statutory right to the landlord or
the tenant to move an application before
the District Magistrate to determine the
annual rent payable in respect of such
land @ 10% per annum of the prevailing
market value of the land, and such rent
shall be payable, except as provided in
sub-Section
(6)
from
the
date
of
expiration of the term for which the land
was let or from the commencement of this
section, whichever is later. This subSection (5) casts a statutory right duty the
District Magistrate to adjudicate the
application so filed by the landlord or the
tenant. Thus, the application filed by the
applicant-petitioners was for enforcement
of statutory right and not for enforcement
of a right arising from a rent agreement/
contract dated 12.12.1945. Even the
aforesaid rent agreement/ contract dated
12.12.1945 has expired by efflux of time
on 31.12.1995. Therefore, the finding of
the Additional District Magistrate (A)/
Rent Control Eviction and Eviction
Officer, Saharanpur on the point of
maintainability of the application of the
applicant-petitioners for reason that the
applicant petitioner No.1 is not an
registered partnership, is wholly arbitrary,
illegal and in conflict with the provisions
of Section 69(2) of the Act 1932 and
Section 29A of the U.P. Act XIII of 1972.

10. In M/s Raptakos Brett and
Company Ltd. v. Ganesh Property,
AIR 1998 SC 3085, Hon'ble Supreme
Court examined the maintainability of
suit filed by a registered firm in the
context of provisions of Section 69(2) of
the Partnership Act 1932 and held that the
suit filed by an unregistered firm is not
barred under Section 69(2) of the Act
1932 if it is based on a statutory right or a
common law right. It also observed that
the right to evict a tenant upon expiry of
the lease was not a right "arising from a
contract" but was a statutory right
conferred
under
the
provisions
of
Transfer of Property Act, 1882. The
decision in M/s Raptakos Brett and
Company Ltd. (supra) was referred with
approval in M/s Haldiram Bhujiawala
and another v. M/s Anand Kumar
Deepak Kumar and another, AIR 2000
SC 1287. Similar view has been taken by
a bench of this court in Punjab and Sind
Banki and another vs. M/s. Manoram
Agencies and others, 2008 (4) ADJ 248.

11. For all the reasons afore-stated,
the
writ
petition
is
allowed.
The
impugned order dated 13.04.2015 in Case
No.1 of 1998 (M/s Saharanpur Estates vs.
Saharanpur Cold Storage Ltd.) under
Section 29A of U.P. Act XIII of 1972
passed
by
the
Additional
District
Magistrate
(A)/
Rent
Control
and
Eviction Officer, Saharanpur, cannot be
sustained and is hereby quashed. Matter is
remitted back to the respondent No.1 to
decide the aforesaid Case No.1 of 1998 in
accordance
with
law,
expeditiously,
preferably within four months from the
date of presentation of a certified copy of
this order, after affording reasonable
opportunity of hearing to the parties.

Order on Application No.9 of
2018 under Section 340, Cr.P.C. filed
by the tenant-respondent

Learned counsel for the tenantrespondent states that the application may
be dismissed as not pressed.

In view of the aforesaid, the
application is dismissed as not pressed.
----------
3 All. Shakuntala Singh Vs. State of U.P. & Ors.
249
(2019)11ILR A249

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.10.2019

BEFORE
THE HON'BLE SUNEET KUMAR , J.

Writ A No. 54211 of 2016

Shakuntala Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Samir Sharma, Sri Satyendra Singh,
Sri Anil Kumar Bajpai.

Counsel for the Respondents:
C.S.C., Sri Sri Prakash Singh, Sri Abhinav
Ojha, Sri Rajmani Yadav.

A. Service Law- Pension - Uttar Pradesh
Urban Planning and Development Act, 1973:
Sections 5(1), 5-A, 24, 55, 56, 59(4); Uttar
Pradesh Development Authorities Centralized
Services Retirement Rules, 2011: Rule 1(iii), 4,
7, 16, 21, 30; U.P. Development Authorities
Centralized Services Rules, 1985: Rules 3, 34,
37; Uttar Pradesh Palika (Centralized) Services
Retirement Benefit Rules, 1981: Rules 7, 37.

Government
Orders
pertaining
to
pension/family pension applicable to
Government
Servants
would
automatically apply to the members of
the Centralized Services of Development
Authority - Joint reading of Rule 4 and 7 of
the U.P. Development Authorities (Centralized
Services) Retirement Benefit Rules, 2011
along with Section 24 of Development Act,
1973 makes it evident that the rules/orders
applicable to the employees of the State
Government and the formula for computation
of pension and family pension would apply by
reference
to
the
employees
of
the
Development Authority. (Para 40)

B. Legislation by incorporation and
legislation by reference - There is a
distinction
between
legislation
by
incorporation and that by reference inasmuch
as in the latter case the amendments made in
the earlier legislation would be applicable to
the referring legislation. The Retirement
Benefit Rules, 2011 makes applicable the
Government Orders insofar it relates to
pension/family pension, by reference. The
subsequent amendments made thereto would
therefore also apply. (Para 43)

The Development Authority has not, and
cannot, adopt a formula other than that
applicable to the government servants
while computing pension and family
pension
of
its
employees.
The
Development Authority lacks the power of
authority to override, deviate or rewrite the
Rules framed by the State Government
governing
and
regulating
pension/family
pension. (Paras 48, 49)

C. Development Authority does not
require
any
approval
of
the State
Government
before
the
recommendations of the respective Pay
Commissions are made applicable to the
government servants through various
Government
Orders
-
Development
Authority constituted under the Development
Act, 1973 is an autonomous body. The State
Government does not fund the Development
Authorities. The Retirement Benefit Rules,
2011, nowhere prohibits the Development
Authorities
from
implementing
the
Government Orders without the prior approval
of the State Government. Rather, the Rule
mandates
that
the
Government
Orders,
pertaining to pension/family pension issued in
respect
of
Government
Servants
gets
applicable and enforced upon the employees
of the Development Authority by operation of
law, no further act of approval is required at
the end of the State Government or the
resolution of the Development Authority.
(Paras 53, 55)

D. The test for a valid classification may
be summarized as a distinction based on
a classification founded on an intelligible
differentia,
which
has
a
rational
relationship with the object sought to be
achieved - It is not open for the Authorities