# Manager, Uttaranchal Jal Sansthan v. Laxmi Devi (Supra), we answer the

- **Citation:** (2010) 3 ILRA 1116
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-30
- **Case number:** Civil Misc. Writ Petition No. 19526 of 1996
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manager-uttaranchal-jal-sansthan-v-laxmi-devi-supra-we-answer-the-41731
- **Pages:** 5

## Headnote

Sri.S.M. Dayal
Sri Ashok Srivastava
Sri M.D. Singh 'Shekhar'
Sri S.C. Dwivedi
Sri S.M.A. Kazmi

U.P. Act No. 13 of 1972-Section 16Release application by land lord in 1994while Suit before SCC pending since
1988 for inconsistent user and Subtenancy-tenant
petitioner
alleged
himself as unauthorised occupant-on
application under section 12 of the Act
for deemed vacancy by third person-land
lord filed release application -whether
time limit will come in way of land
lord/Respondent
held-'No'-unfettered
right of release of land lord there in view
of Ajai Pal's case.

Held: Para 10

So far as the question of delay is
concerned, it can be examined from two
3 All] Azim Ullah V. Rent Control and Eviction Officer and others
1117
angles. As already noted above, the
landlord had filed suit for eviction in
1988 treating the petitioner to be a
statutory tenant but it was the petitioner
himself who claimed and obtained the
benefit
of
being
an
unauthorized
occupant and therefore the landlord had
no other option but to file the release
application on the ground of deemed
vacancy and thus application was filed
within a reasonable time in 1994, which
was much before the expiry of twelve
years. Secondly, the proceedings for
declaration of vacancy were not started
by the landlord but by one Vasudeo and
only when notices were issued by the
Rent Controller to the petitioner that the
release
application
was
filed
and
therefore applying the ratio laid down by
the Division Bench in Ajay Pal's case
(Supra) the right of the landlord to get it
released, was unfettered.
Case law discussed:
[1984 A.R.C. 17], [1996 (2) A.R.C.474], [2006
(1) A.R.C. 377], [1993 (20 A.R.C. 204 FB],
[2002 (8) SCC 31], [2008 (2) A.R.C. 264].

## Text

1116 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

26. On the aforesaid discussion, and in
view of the law laid down in General
Manager, Uttaranchal Jal Sansthan Vs.
Laxmi Devi (Supra), we answer the
questions posed as follows:-

"1. A daily wager and workcharge
employee employed in connection with the
affairs of the Uttar Pradesh, who is not
holding any post, whether substantive or
temporary, and is not appointed in any
regular vacancy, even if he was working for
more than 3 years, is not a 'Government
servant' within the meaning of Rule 2 (a) of
U.P.
Recruitment
of
Dependants
of
Government Servant (Dying in Harness)
Rules, 1974, and thus his dependants on his
death in harness are not entitled to
compassionate appointment under these
Rules.

2. The judgements in Smt. Pushpa Lata
Dixit Vs. Madhyamik Shiksha Parishad and
others, 1991 (18) ALR 591; Smt. Maya
Devi Vs. State of U.P. (Writ Petition
No.24231 of 1998 decided on 2.3.1998);
State of U.P. Vs. Maya Devi (Special
Appeal No.409 of 1998); Santosh Kumar
Misra Vs. State of U.P. & Ors., 2001 (4)
ESC (Alld) 1615; and Anju Misra Vs.
General Manager, Kanpur Jal Sansthan
(2004) 1 UPLBEC 201 giving benefit of
compassionate
appointment
to
the
dependants of daily wage and workcharge
employee have not been correctly decided."

27. All the writ petitions are
consequently dismissed. The delay in filing
the Special Appeal Nos.845 (D) of 2009;
595 (D) of 2002; 610 (D) of 2003 and 1170
(D) of 2007 has been sufficiently explained
and is accordingly condoned. The Special
Appeal Nos.845 (D) of 2009; 595 (D) of
2002; 610 (D) of 2003; 1284 of 2010; 1849
of 2009; 1170 (D) of 2007; 85 of 2004 and
567 of 2008 are allowed. The judgements of
learned Single Judge challenging these
appeals are set aside and the writ petitions
are dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2010

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 19526 of 1996

Azim Ullah

 ...Petitioner
Versus
Rent Control and Eviction Officer and
others

 ...Respondents

Counsel for the Petitioner:
Sri Dharam P. Singh
Sri P.K. Dubey
Sri S. Niranjan

Counsel for the Respondents:
Sri.S.M. Dayal
Sri Ashok Srivastava
Sri M.D. Singh 'Shekhar'
Sri S.C. Dwivedi
Sri S.M.A. Kazmi

U.P. Act No. 13 of 1972-Section 16Release application by land lord in 1994while Suit before SCC pending since
1988 for inconsistent user and Subtenancy-tenant
petitioner
alleged
himself as unauthorised occupant-on
application under section 12 of the Act
for deemed vacancy by third person-land
lord filed release application -whether
time limit will come in way of land
lord/Respondent
held-'No'-unfettered
right of release of land lord there in view
of Ajai Pal's case.

Held: Para 10

So far as the question of delay is
concerned, it can be examined from two
3 All] Azim Ullah V. Rent Control and Eviction Officer and others
1117
angles. As already noted above, the
landlord had filed suit for eviction in
1988 treating the petitioner to be a
statutory tenant but it was the petitioner
himself who claimed and obtained the
benefit
of
being
an
unauthorized
occupant and therefore the landlord had
no other option but to file the release
application on the ground of deemed
vacancy and thus application was filed
within a reasonable time in 1994, which
was much before the expiry of twelve
years. Secondly, the proceedings for
declaration of vacancy were not started
by the landlord but by one Vasudeo and
only when notices were issued by the
Rent Controller to the petitioner that the
release
application
was
filed
and
therefore applying the ratio laid down by
the Division Bench in Ajay Pal's case
(Supra) the right of the landlord to get it
released, was unfettered.
Case law discussed:
[1984 A.R.C. 17], [1996 (2) A.R.C.474], [2006
(1) A.R.C. 377], [1993 (20 A.R.C. 204 FB],
[2002 (8) SCC 31], [2008 (2) A.R.C. 264].

(Delivered by Hon'ble D.P. Singh, J.)

1. Heard learned counsel for the
parties.

2. This petition is directed against a
vacancy order
dated 27.5.1996.
The
connected petition no. 19162 of 1997 is
directed against the release order granted in
favour of the respondent-landlord but its
fate would depend upon the decision of the
present case.

3. The dispute relates to a shop on the
ground floor of a building No.128/91, Block
B, Kidwai Nagar in Kanpur of which the
respondents are the owners in possession.
The respondents instituted a SCC suit no.
39 of 1988 against the petitioner under
section 20 of U.P. Act No. XIII of 1972
(here-in-after referred to as the Act) treating
him to be a statutory tenant of the disputed
shop from 1979 @ Rs.90/- per month for
eviction on the ground of arrears of rent
from 1.4.1983 to 18.1.1988 and material
alternation. The petitioner filed written
statement denying default and further
alleging that he was inducted by the father
of the respondents as an unauthorized
occupant in 1979 without an order of
allotment passed under the Act and
therefore he could not be evicted under the
Act. The suit was subsequently dismissed
also on the ground that the petitioner was an
unauthorized occupant.

4. However, after the pleadings were
exchanged by the parties, one Vasudev filed
an application for allotment of the disputed
shop on 10.6.1994 alleging vacancy as it
was occupied by the petitioner without an
order of allotment. After obtaining a report
of the Inspector, the Rent Controller issued
notice to both the parties, who appeared and
filed
their
respective
pleadings
and
evidence. The Rent Controller rejected the
case of the petitioner that he was a tenant
since 1975 and went on to hold that he was
inducted as a tenant in 1979 without an
allotment order in violation of sections, 11,
13, 14, 16, 31, 33 etc. of the Act and
declared it to be vacant by the impugned
order.

5. It is urged on behalf of the
petitioner that since the landlord himself
had inducted him as tenant, thus could not
reap the benefit of his own fault. It is also
urged on behalf of the petitioner that since
no proceedings for declaration of vacancy
or release having been initiated within a
period of 12 years, the proceedings initiated
on the basis of allotment application dated
10.6.1994 were not maintainable as it was
beyond a reasonable time. In support of his
contention, he has relied upon the decision
of the Apex Court rendered in the case of
1118 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Mansa Ram Vs. S.P. Rathore and others
[1984 A.R.C. 17] and the subsequent
decisions of this court following it in the
case of Smt. Brij Bala Jain Vs. Smt.
Amarjeet Kaur and others [ 1996 (2)
A.R.C. 474]; Anil Kumar Dixit Vs. Maya
Tripathi and another [[2006 (1) A.R.C.
377] and the decision in Rajeev Maurya
Vs. Rent Control and Eviction Officer
and others [2008 (3) A.R.C. 359].

6. In Mansaram's case it was held that
twelve year was a reasonable time to initiate
vacancy
proceedings
against
an
unauthorized occupant and the other
decision merely followed it. Let us consider,
what was the precise issue before the Apex
Court in the case of Mansa Ram (Supra).
That was a case under Central Provinces
and Berar Letting of Houses and Rent
Control Order, 1949. Under the said Order,
the landlord was obliged to intimate
vacancy to the Collector within seven days
under Clause 21 (1) and was restrained from
letting
out
the
premises
except
in
accordance with an order of the Collector
under Clause 23. However, under Clause 23
(1) the Collector was obliged to pass an
order for allotment within 15 days failing
which the landlord was entitled to let it out
under sub clause (2) and the tenancy was
recognized under Sub clause (2) of Clause
22. Thus, under the aforesaid order, though
the right of landlord was curtailed but yet he
had the right to let out the premises to a
person of his choice on the non-allotment
within 15 days of the intimation and there
was no complete bar under the said Order.
In this background, it was examining
whether an application for eviction was
maintainable after 22 years. The Court in
these circumstances, and rightly so, held
that the power should be exercised within a
reasonable time and the applicability of
Clause 23 (2) should have been examined.
However, there is a complete bar upon any
person to occupy any premises covered by
the Act as a tenant in section 11 which reads
as under:-

"11. Prohibition of letting without
allotment order - Save as herein-after
provided, no person shall let any buildings
except in pursuance of an allotment order
issued under section 16."

7. A Full Bench of our Court in
Nootan Kumar Vs. Additional District
Judge [1993 (20 A.R.C. 204 FB] held that
occupation by a tenant through an
agreement dehors the provisions of the Act
and would be void and no eviction at the
behest of the landlord could be passed
against such tenant. But this Full Bench was
overruled by the Apex Court in Nutan
Kumar Vs. II Additional District Judge
[2002 (8) SCC 31] holding that in view of
sections 11, 12, 13, 17 and 31 of the Act,
the tenant would be treated to be an
unauthorized occupant and in view of
section 12 the premises would be deemed
vacant and available for allotment or
release. A Division Bench of our Court in
Ajay Pal Singh Vs. District Judge,
Meerut [2008 (2) A.R.C. 264] was called
upon to answer the following questions
referred to it by a learned Single Judge in
view of contrary decisions by two learned
Judges of this Court:-

"1. Whether in case a landlord lets a
building/accommodation covered under the
U.P. urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 (U.P.
Act No. XIII of 1971) to a person without
allotment
order,
and
the
building/accommodation is declared vacant
on account of such letting, the landlord is
deprived of seeking release of such
3 All] Azim Ullah V. Rent Control and Eviction Officer and others
1119
building/accommodation under Section 16
(1) (b) of the said Act?

2. Whether the release application
filed by such a landlord under Section 16
(1) (b) of the said Act is liable to be ignored,
and the release order passed on such
application is void and cannot be given
effect to?

3. Whether the High Court in exercise
of its writ jurisdiction under Article 226 of
the Constitution of India can deprive such a
landlord of his right to seek release of the
aforesaid building/accommodation under
Section 16(1) (b) by issuing declaration
declaring the release order in favour of
such a landlord as void, and directing the
District Magistrate/Delegated Authority not
to give effect to such release order?"

8. After considering large number of
decisions of the Apex Court and this Court,
it answered the questions in para 26 of the
report in the following manner:-

In view of the aforesaid we are of the
considered opinion that the application
made by the landlord under Section 16 (1)
(b) for release of an accommodation, which
is deemed to be fallen vacant under section
12 (4) because of his having put in
occupation an unauthorized occupant, is
not hampered or impaired in any manner
under the 1971 Act. The application has to
be considered on merit in accordance with
law
by
the
District
Magistrate.
Unauthorized occupant/prospective allottee
has no right to interfere in the aforesaid
proceedings of release, as has been held by
successive judgements of the Hon'ble
Supreme court as well as by this Court
repeatedly. It is only after the release
application is rejected, that a prospective
allottee comes into picture and therefore
revision against an order of release under
section 18 at the behest of prospective
allottee would not be maintainable. The
questions referred to this Bench by the
Hon'ble Single Judge are, therefore,
answered as follows:

(a) Landlord is not deprived of his
legal right to make an release application in
respect of a building which had been earlier
given in possession, by him, to an
unauthorized occupant in violation of the
provisions of Act No. XIII of 1971.

(b) The release application made by
the landlord cannot be ignored nor the
order passed thereon can be termed to be
void or of no effect.

(C) The High Court in exercise of
powers
under
Section
226
of
the
Constitution of India need not declare the
order made in favour of such landlord as
void, In view of the answer given to
question No.1, referred to above."

9. Thus, the argument of the learned
counsel for the petitioner that the landlord
was estopped from claiming release of the
building cannot be accepted.

10. So far as the question of delay is
concerned, it can be examined from two
angles. As already noted above, the landlord
had filed suit for eviction in 1988 treating
the petitioner to be a statutory tenant but it
was the petitioner himself who claimed and
obtained
the
benefit
of
being
an
unauthorized occupant and therefore the
landlord had no other option but to file the
release application on the ground of deemed
vacancy and thus application was filed
within a reasonable time in 1994, which
was much before the expiry of twelve years.
Secondly, the proceedings for declaration of
1120 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
vacancy were not started by the landlord but
by one Vasudeo and only when notices
were issued by the Rent Controller to the
petitioner that the release application was
filed and therefore applying the ratio laid
down by the Division Bench in Ajay Pal's
case (Supra) the right of the landlord to get
it released, was unfettered.

11. Thus examined from any angle,
none of the arguments advanced merits
acceptance.

12. No other point has been urged.

13. For the reasons above, this is not a
fit case for interference under Article 226 of
the Constitution of India. Rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2010

BEFORE
THE HON'BLE FERDINO I. REBELLO, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No. 20841 of 2009

Neena Chaturvedi

 ...Petitioner
Versus
Public Service Commission, Uttar Pradesh

 ...Respondent

Counsel for the petitioner:
Sri N.L. Pandey,
Sri Yatindra Dubey

Counsel for the respondent:
Sri. M.A. Qadeer,
Sri. Iqbal Ahmad Siddiqui,
Sri Pushpendra Singh
C.S.C.

Indian Post Office Act 1898-letter-send
through registered post-in the post office
being public service having wide impacttouching
Fundamental
Rights
of
Candidates-considering
this
aspectreference
made
before
Full
Bench-if
application send through Registered post
on
17.02.20009
record
in
office
of
commission one day later-whether is the
commission bound to process the same if
the Post Office is agent of candidate who
send
this
article
or
the
agent
of
commission?-held-reference
itself
misconceived-considering
various
legal
aspects there is no role of commission-if
ofter not accepted by candidate-Post
Office being the agent of sender-the
candidate is self responsible-reference
itself not maintainable.

Held Para 45

Even in respect of an agency the same is
based on the principle, that the Principal is
bound by the acts of the agent. Rule of
agency in a case of merely inviting offers
normally would not apply if a date for
receipt of the acceptance is set out.
Therefore, in such cases, if at all the law of
agency applies it would be between the
sender and the post office by virtue of the
fact that the sender delivers the letters or
articles to the post office. The post office is
bound as an agent of the sender to deliver
it to the addressee.
Case Law Discussed:
[2009 (3) ESC 2082 (All)], 1974 A.L.J.470 (FB),
AIR 1954 SC 429, 1987 U.P.L.B.E.C.,316, A.C.J.
1995 page 200, (2001) 4 S.C.C. 448, (2002) 1
S.C.C. 1, AIR 2005 Supreme Court 752, (2008)
10 SCC 1, 1974 A.L.J. 470 (FB), AIR 1954 SC
429, AIR 1959 SC 1070, (1979) 3 S.C.C. 745,
(2003) 2 S.C.C. 111, AIR 1990 SC 1782, (1990) 3
S.C.C. 682, AIR 1988 SC 1531, (2008) 10 SCC 1,
1987 U.P.L.B.E.C. 316, [(2006) 1 UPLBEC 152],
AIR 1966 S.C. 1466, (1879) 4 Ex D 216, [1974] 1
All ER 161.

(Delivered by Hon'ble F.I. Rebello, C.J.)

1. The Petitioner pursuant to an
advertisement,
which
had
invited
applications for the post of Lecturer in
Government Intermediate College, which