# Mohammad Afzal v. Smt. Ramesh Kumari

- **Citation:** (2014) 2 ILRA 1034
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-21
- **Case number:** Civil Misc. Writ Petition No. 64325 of 2008
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-afzal-v-smt-ramesh-kumari-42933
- **Pages:** 4

## Headnote

Transfer of Property Act, Section 106Notice-determination of tenancy-15 days
provided-sent itself filed before expiry of
30 days-decreed by Court below-helderroneous approach-in U.P. 30 days
notice-mandatory-prior
to
that
suit
itself-not maintainable.

Held: Para-14
Therefore, the notice dated 4.3.2005
which forms the basis of the suit is
invalid and the tenancy of the petitioner
can not be treated to have been validly
determined and since the suit has also
been instituted before the expiry of the
statutory period of notice, it is defective.
Thus, the Courts below erred in law in
decreeing the suit.

## Text

1034 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule 454 where it is an obligation on the
Committee of Management to take action
only when the conditions as explained in
the
above
mentioned
decisions
are
fulfilled.

23. The respondents appear to have
proceeded without taking into account the
aforesaid distinction between the manner
and the procedure that is prescribed for
exercise of such powers. The impugned
action therefore cannot stand the scrutiny
of law and if it is without adhering to the
procedure prescribed then there is no
occasion for this Court to relegate the
petitioners to the alternative remedy for
seeking arbitration or even otherwise
before the Registrar. The exceptions as
enumerated in the ratio of M/s Whirlpool
(Supra) and even otherwise the facts of
this case, do not bar the entertaining of
this petition. The impugned action as
concluded above, suffers from malice in
law and is therefore liable to be struck
down on the facts noted above.

24. Since learned counsel for the
parties have agreed for final disposal of
the writ petition at this stage itself, the
writ petition is allowed, the resolution
dated 21.8.2014 and the consequential
communication
dated
22.8.2014
disqualifying the petitioners are hereby
quashed leaving it open to the respective
authorities to take any action in case so
warranted in law in accordance with the
rules
and
procedure
as
observed
hereinabove.

25. The writ petition is accordingly
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2014
BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 64325 of 2008

Mohammad Afzal ...Petitioner
Versus
Smt. Ramesh Kumari ...Respondent

Counsel for the Petitioner:
Sri Satish Mandhyan, Sri B.D. Mandhyan
Sri Om Prakash

Counsel for the Respondent:
Sri R.K. Pandey, Sri R.P. Pandey

Transfer of Property Act, Section 106Notice-determination of tenancy-15 days
provided-sent itself filed before expiry of
30 days-decreed by Court below-helderroneous approach-in U.P. 30 days
notice-mandatory-prior
to
that
suit
itself-not maintainable.

Held: Para-14
Therefore, the notice dated 4.3.2005
which forms the basis of the suit is
invalid and the tenancy of the petitioner
can not be treated to have been validly
determined and since the suit has also
been instituted before the expiry of the
statutory period of notice, it is defective.
Thus, the Courts below erred in law in
decreeing the suit.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard Sri Om Prakash, learned
counsel for the petitioner and Sri R.K.
Pandey,
learned
counsel
for
the
respondent.

2. Petitioner is a tenant. His tenancy
is said to have been terminated vide
notice dated 4.3.2005 under Section 106
of the Transfer of Property Act, 1882 (in
short TP Act) whereupon the respondent
landlord instituted SCC Suit No. 8 of
2005 for his eviction. The suit has been
2 All]. Mohammad Afzal Vs. Smt. Ramesh Kumari
1035
decreed by the courts below holding that
the provisions of U.P. Act No. 13 of 1972
are not applicable to the shop in dispute
and that the notice was a valid notice
terminating the tenancy of the petitioner.

3. The sole ground on which the writ
petition has been filed is that notice
determining tenancy was invalid as only
15 days notice was given whereas
according to U.P. Amendment to Section
106 of the TP Act a notice of 30 days is
mandatory.

4. In reply to the above Sri Pandey
submits that the U.P. Amendment is of
the year 1954. The Transfer of Property
Act has been amended in 2002 which
provides
for
15
days
notice
for
determining the month to month tenancy.
Therefore, the U.P. Amendment of 1954
is of no significance and there is no
corresponding State amendment.

5. Section 106 of the TP Act as it
stood originally is reproduced herein
below:-

"106. Duration of certain leases in
absence of written contract or local usage----
In the absence of a contract or local law or
usage to the contrary, a contractor or local
law or usage to the contrary, a lease of
immovable property for agricultural or
manufacturing purposes shall be deemed to
be a lease from year to year, terminable, on
the part of either lessor or lessee, by six
months' notice expiring with the end of a
year of the tenancy; and a lease of
immovable property for any other purpose
shall be deemed to be a lease from month to
month, terminable, on the part of either
lessor or lessee, by fifteen days notice
expiring with the end of a month of the
tenancy.

Every notice under this section must be
in writing, signed by or on behalf of the
person giving it, and either be sent by post to
the party who is intended to be bound by it or
be tendered or delivered personally to such
party, or to one of his family or servants at
his residence, or (if such tender or delivery is
not practicable) affixed to a conspicuous
part of the property."

6. It provides that a month to month
lease or tenancy is terminable on part of
the lessor or lessee by 15 days notice
expiring at the end of the month of the
tenancy. Therefore, Section 106 of the TP
Act as it stood originally stipulates for 15
days notice for determining the tenancy.

7. The aforesaid section 106 of the
Transfer
of
Property
Act
in
its
applicability to the State of U.P. was
amended by U.P. Act No. 24 of 1954
w.e.f. 30.11.1954 and it was provided that
in place of 15 days notice appearing in
Section 106 of the Act, the notice period
of 30 days be substituted. It means that
instead of 15 days notice 30 days notice is
required for determining the tenancy in
the State of U.P.

8. Section 106 of the Act has been
amended by the Transfer of Property
(Amendment Act 2002) w.e.f. 31st
December 2002 and the entire provision
has been redrafted as under:-

"106. Duration of certain leases in
absence of written contract or local
usage----

(1) In the absence of a contact or
local law or usage to the contrary, a lease
of immovable property for agricultural or
manufacturing purposes shall be deemed
to be a lease from year to year,
terminable, on the part of either lessor or
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
lessee, by six months' notice; and a lease
of immovable property for any other
purpose shall be deemed to be a lease
from month to month, terminable, on the
part of either lessor or lessee, by fifteen
days' notice.

(2)
Notwithstanding
anything
contained in any other law for the time
being enforce, the period mentioned in
sub-section (1) shall commence from the
date of receipt of notice.

(3) A notice under sub-section (1)
shall not be deemed to be invalid merely
because the period mentioned therein
falls short of the period specified under
that
sub-section,
where
a
suit
or
proceeding is filed after the expiry of the
period mentioned in that sub-section.

(4) Every notice under sub-section
(1) must be in writing, signed by or on
behalf of the person giving it, and either
be sent by post to the party who is
intended to be bound by it or be tendered
or delivered personally to such party, or
to one of his family or servants at his
residence, or (if such tender or delivery is
not practicable) affixed to a conspicuous
part of the property."

9. The revised section 106 of the TP
Act still provides for 15 days notice for
determination
of
monthly
tenancy.
Therefore, the notice period for determining
the tenancy under Section 106 of the T.P.
Act remains the same/unchanged despite the
amendment of 2002.

10. The said notice period as
provided under Section 106 of the TP Act
was amended to 30 days in its application
to the State of U.P. Since there is no
change in the notice period by the
Transfer of Property Amendment Act of
2002, the notice period as it stood
originally and amended in its applicability
to the State of U.P. would continue to
hold the field. In other words, in the State
of U.P. 30 days notice is mandatory for
determining the month to month tenancy.

11. In the instant case, the notice
gives only 15 days time for determining
the tenancy of the petitioner. Therefore,
the notice ex-facie appears to be invalid.

12. The suit on its basis was instituted
on 22.3.2005 ie. within 18 days of the
issuance of notice. Thus, the institution of
the suit was also earlier to 30 days statutory
period of notice. It therefore would not be
saved even by Sub-section 3 of Section 106
of the TP Act.

13. In view of the aforesaid facts and
circumstances, the requirement of law in its
applicability to the State of U.P. is for a
notice of 30 days for determining the month
to month tenancy. The defect of shorter
period of notice could have been cured had
the suit been filed subsequent to the expiry of
the notice period of 30 days as prescribed
under the Act in its application to the State of
U.P. However, in the present case, not only
the notice period is short than prescribed but
the suit was also instituted before expiry of
30days period.

14. Therefore, the notice dated
4.3.2005 which forms the basis of the suit
is invalid and the tenancy of the petitioner
can not be treated to have been validly
determined and since the suit has also
been instituted before the expiry of the
statutory period of notice, it is defective.
Thus, the Courts below erred in law in
decreeing the suit.

15. Accordingly, the judgment and
orders dated 29.11.2008 and 28.7.2008
are quashed and the petition is allowed.
--------
2 All]. Aparna Construction & Supplies, Mirzapur Vs. State of U.P. & Ors.
1037
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.08.2014

BEFORE
THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE ASHWANI KUMAR MISHRA, J.

Civil Misc. Writ Petition No.65807 of 2013

Aparna Construction & Supplies, Mirzapur
 ...Petitioner
Versus
State of U.P. & Ors. . ..Respondents

Counsel for the Petitioner:
Sri P.N. Tripathi, Sri Anil Bhushan

Counsel for the Respondents:
C.S.C.

U.P. Public Money(Recovery of dues) Act
1972-Section-3(i)(d)-public
money
defined-petitioner a contractor-allowed
to complete construction work within 6
month-could not completed due to want
of money-instead of releasing amount on
demand-work
order-canceled
and
recovery of loss due to non completion of
work-as arrears of land revenue-held
contractual dues not recoverable as
arrears of land revenue-citation-without
jurisdiction.

Held: Para-11
In view of the discussions made above,
we find that issuance of recovery citation
against the petitioner for realization of
the contractual dues, alleged to be
payable by the petitioner as arrears of
land revenue, is contrary to law. The
citation issued on 8.11.2013 calling upon
the
petitioner
to
pay
the
amount,
therefore, is wholly without jurisdiction
and is liable to be quashed.

Case Law discussed:
[(2006) 3 AWC 2412]

(Delivered by Hon'ble Ashwani Kumar
Mishra , J.)

1. Petitioner firm is a contractor duly
registered with the office of Divisional
Forest Officer, Forest Region, Mirzapur.
It claims that pursuant to award of
contract, a work order was issued by
respondents for construction of 30 houses
on 12.11.2010. It is asserted that the
contract
work
was
satisfactorily
completed,
whereafter
a
physical
verification was also done on 9.9.2011.
Subsequently, a team of officers also
conducted
physical
verification
and
submitted
its
report.
The
Assistant
Engineer concerned forwarded the report
stating that on 25.10.2012 the verification
team found 20 houses to be as per norms.
The
petitioner
thus
represented
on
2.2.2012
that
he
has
substantially
completed the work and the remaining
work is withheld only due to non-release
of payment against pending bills and
sought release of payment. The demand
for release of payment was also pressed
by the petitioner.

2. The petitioner claims that instead
of releasing the withheld payment, it was
served with an order dated 24.4.2013,
cancelling the contract itself on the
ground that the construction since was not
completed within a period of six months,
as was required in the contract, as such,
the contract was cancelled under Clause
44.1 of the agreement for breach of
contract. The petitioner was also informed
that losses caused were liable to be
recovered from petitioner by virtue of
Clause 45.1 of the Contract. A recovery
thereafter under Z.A. Form 68 has been
issued on 8.11.2013 for a sum of Rs.
22,02,454/-, which is under challenge in
the present writ petition.

3. We have heard Sri Anil Bhushan,
Advocate for the petitioner and learned