# Mohd. Ilyas Ahmad v. The XIII A.D.J., Allahabad and others

- **Citation:** (2002) 3 ILRA 852
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002
- **Case number:** Civil Misc. Writ Petition No. 37313 of 2002
- **Bench:** Sushil Harkauli
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ilyas-ahmad-v-the-xiii-a-d-j-allahabad-and-others-40019
- **Pages:** 4

## Headnote

U.P. Act No. 13 of 1972- Section 20 (4)-
Ejectment- on the ground the son of
tenant possess own residential house in
the same city- whether ejectment can be
made despite of the fact-- son not comes
within the meaning of family ?- held-
'Yes'.

Held- Para 9

On the other hand learned counsel for
the
respondent
has
relied
upon
a
decision of a learned single Judge of this
Court which directly covers the issue.
The said decision is Sri Iiya Uddin Vs.
ADJ reported in 1982 ARC 200. In the
said decision it has been held that the
requirement of being dependent on the
tenant or normally residing with the
tenant is not necessary in Section 20 (4)
proviso.

## Text

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852 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
The said case has got no application to the
facts of the present case.

15. In Vishwa Swarup case (supra),
the said case was also decided on the facts
of that case. There was dispute regarding
an
entry
which
showed
Kamala
respondent in the said case as sub-tenant.
It was observed that an entry in that case
in Khasra 135 F. which has got the special
status under the law. The said entry
confers the right of occupant under
Section 20 of the U.P. Zamindari
Abolition and Land Reforms Act and
further confers the right of Adhivasi. The
said view was taken by the single Judge.
The Deputy Director of Consolidation
held to the contrary. Once the order of
the Dy.Director of Consolidation was
quashed, this Court was right in holding
that the case was to be re-considered by
the Deputy Director of Consolidation.

16. In Kamta Singh (supra), the
order was passed on an misc. application.
It is not known as to what had happened
in the case ultimately, therefore, the said
order has got no binding effect.

17. From the above noted authorities
cited by learned counsel for the petitioner,
it is abundantly clear that the orders
passed by the subordinate authorities
merge in the orders passed by the superior
authority. In the present case , orders
passed by the Consolidation Officer and
the Settlement Officer Consolidation were
merged in the order passed by the Deputy
Director of Consolidation, which was
ultimately quashed by this Court. Thus
the only judgment which remained
operative between the parties was the
judgment of this Court passed in the
above
noted
writ
petition.
Learned
counsel for the petitioners is right in his
submission that the theory of merger was
fully applicable in the present case. So far
as the decisions referred by learned
counsel
for
the
respondents
are
concerned, for the reasons stated above,
they have got no application to the facts
of this case. They are decisions of the
facts of those cases and are, therefore,
distinguishable from the facts of the
present case.

18. In view of the aforesaid
discussion, this petition deserves to be
allowed.

19. The writ petition succeeds and is
hereby
allowed.
The
order
dated
16.6.1995 passed by the respondent no. 1
is hereby quashed.

20. It is further directed that the
name of Badri from the revenue papers be
expunged and of Shri Nath and Radhey
Shyam, who claim their rights on the
basis of sale deed executed by Badri and
the names of the petitioners be entered in
revenue papers.
No orders as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.9.2002

BEFORE
THE HON'BLE SUSHIL HARKAULI, J.

Civil Misc. Writ Petition No. 37313 of 2002

Mohd. Ilyas Ahmad

...Petitioner
Versus
The
XIII
Additional
District
Judge,
Allahabad and others
 ...Respondents

Counsel for the Petitioner:
Sri Rajesh Tandon
Sri S.N. Misra
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3 All] Mohd. Ilyas Ahmad V. The XIII A.D.J., Allahabad and others 853
Counsel for the Respondents:
Sri K.M. Asthana
S.C.

U.P. Act No. 13 of 1972- Section 20 (4)-
Ejectment- on the ground the son of
tenant possess own residential house in
the same city- whether ejectment can be
made despite of the fact-- son not comes
within the meaning of family ?- held-
'Yes'.

Held- Para 9

On the other hand learned counsel for
the
respondent
has
relied
upon
a
decision of a learned single Judge of this
Court which directly covers the issue.
The said decision is Sri Iiya Uddin Vs.
ADJ reported in 1982 ARC 200. In the
said decision it has been held that the
requirement of being dependent on the
tenant or normally residing with the
tenant is not necessary in Section 20 (4)
proviso.

(Delivered by Hon'ble Sushil Harkauli,J.)

1. I have heard learned counsel for
both sides.

2. The benefit of Section 20 (4) of
U.P. Act No. 13 of 1972 has been denied
to the petitioner tenant under the proviso
to that sub section.

3. The finding of fact returned by
the impugned order states that the son of
the tenant has acquired a; house in vacant
state in the same city and the tenant
himself has, by inheritance, got another
accommodation in which at least two
rooms are vacant.

4. Learned counsel for the petitioner
has argued that the son of the petitioner
should not be treated to be a 'member of
the tenant's family' within the meaning of
the proviso to Section 20 (4). For ready
reference Section 20 (4) along with the
proviso is reproduced below :

"20.

(4) In any suit for eviction on; the
ground mentioned in clause (a) of sub
section (2) if at the first hearing of the
suit, the tenant unconditionally pays or
tenders to the landlord or deposits in
court the entire amount of rent and
damages for use and occupation of the
building due from him (such damages for
use and occupation being calculated at
the same rate as rent) together with
interest thereon at the rate of nine per
cent per annum and the land lord's costs
of the suit in respect thereof, after
deducting there from any amount already
deposited by the tenant under sub section
(1) of Section 30, the court may, in lieu of
passing a decree for eviction on that
ground, pass an order relieving the tenant
against his liability for eviction on that
ground.
Provided that nothing in this sub
section shall apply in relation to a tenant
who or any member of whose family has
built or has otherwise acquired in a
vacant state or has got vacated after
acquisition, any residential building in the
same city, municipality, notified area or
town area.'

5. In this connection two other
provisions of the Act which are relevant
are Section 3 (g) and proviso to Section
12 (3) and 'Explanation (b)' to that sub
section.. These two provisions are also
reproduced below:

"3 (g) "family" in relation to a landlord or
tenant of a building means his or her-
(i) spouse
(ii) male lineal descendants
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854 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
(iii) such parents, grandparents and any
unmarried or widowed or divorced or
judicially separated daughter or daughter
of a male lineal descendent, as may have
been normally residing with him or her.

and includes in relation to a land lord any
female having a legal right of residence in
that building"

"12 (3) In the case of a residential
building, if the tenant or any member of
his family builds or otherwise acquire in a
vacant state or gets vacated a residential
building in the same city, municipality,
notified area or town area in which the
building under tenancy is situate, he shall
be deemed to have ceased to occupy the
building under his tenancy:

Provided that if the tenant or any member
of his family had built any such
residential building before the date of
commencement of this Act, then such
tenant shall be deemed to have ceased to
occupy the building under his tenancy
upon the expiration of a period of one
year from the said date.

EXPLANATION- For the purposes of
this sub section-

(a)...........
(b) the expression' any member of family',
in relation to a tenant, shall not include a
person who has neither been normally
residing with nor is wholly dependent on
such tenant.'

6. In the light of above provisions,
for the purpose of interpreting the words
'member of the tenant's family' as used in
the proviso to Section 20 (4), the
definition in section 3 (g) would be used
and by such use the son of the petitioner
would be a member of the family of the
petitioner, though the son may not be
wholly dependent or normally residing
with the tenant.

7. Learned counsel for the petitioner
has relying upon (1) the decision of
Supreme Court in the case of Harish
Tandon Vs. ADM reported in 1995 (1)
ARC 220, (2) the decision of a learned
single Judge of this Court in ;the case of
Som Nath Shet Vs. II ADJ reported in
1981 ARC 82, (3) the decision of a
Division Bench of this Court in the case
of Sri Nath Tandon Vs. RCEO reported in
1979 ARC 351, (4) the decision of a
learned single Judge of this Court in the
case of Mohan Vs. III ADJ reported in
1995 (1) ARC 45, (5) the decision of a
learned single Judge of this Court in the
case of Madan Goptal Maheshwari v.
District Judge and others reported in 1999
(2) ARC 241, and (5) the decision of
Supreme Court in the case of Mancheri
Vs. Kuthipavattam reported in (1996) 6
SCC 185, has submitted that under section
20 (4) the son would not be a member of
family of the tenant unless the said son
was wholly dependent upon the tenant or
was normally residing with the tenant in
the accommodation in dispute. The
decision of Supreme Court in the case of
(1996) 6 SCC 185 does not deal with the
issue at all. The decision in 1995 (1) ARC
45 is also not on the point as it was a case
where the spouse of the tenant had
purchased a plot and not a house. All the
remaining cases cited above deal with
Explanation to Section 12 (3) of the Act.
None of the cases deal with proviso to
Section 20 (4).

8. As will be noticed from the
express words, Explanation (b) to Section
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3 All] Ashok Kumar V. U.P. State Transport Corporation and others 855
12 (3) indicates that the modified
definition of 'member of family' is for the
purposes of that sub section only i.e. for
the purposes of section 12 (3). There is no
logical reason to apply the modified
definition to section 20 (4) of the Act.

9. On the other hand learned counsel
for the respondent has relied upon a
decision of a learned single Judge of this
Court which directly covers the issue. The
said decision is Sri Jiya Uddin Vs. II ADJ
reported in 1982 ARC 200. In the said
decision it has been held that the
requirement of being dependent on the
tenant or normally residing with the
tenant is not necessary in Section 20 (4)
proviso.

In
the
circumstances
this
writ
petition is devoid of merit and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.9.2002

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 27968 of 1992

Ashok Kumar

...Petitioner
Versus
U.P. State Transport Corporation and
others

 ...Respondents

Counsel for the Petitioner:
Sri S.A. Gilani
Sri S.N. Singh

Counsel for the Respondents:
Sri Samir Sharma
Sri S.K. Sharma
S.C.

Constitution
of
India,
Article
226-
Carrying passengers- without ticket after
full fledge enquiry- Petitioner was found
guilty- Industrial Tribunal also found the
termination order valid- held- warrants
no interference.

Held- Para 18

The findings of fact cannot be normally
interfered with by this Court in exercise
of powers under Article 226 of the
Constitution of India until and unless
there are strong reasons of mala fide and
perversity on the face of record. There is
no illegality or infirmity in the impugned
award and it is not a fit case for
interference
by
exercise
of
extra
ordinary powers under Article 226 of the
Constitution of India.
Case law discussed:
JT 1995 (8) SC-65
1996 (i) UPLBEC 2
1999 () UPLBEC 102, 103
2000 (i) ESC -82 ( Alld)
2000 (2) AWC 1475 (SC)

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard the learned counsel for the
petitioner and perused the records.

2. The petitioner has filed the
present writ petition challenging the
award dated 3.4.1992 passed by the
labour court, Annexure 3 and the order of
termination dated 20.4.1982 passed by
respondent no.2, Aannexure-1 to the writ
petition.

3. The petitioner was appointed as a
Bus Conductor on 10.6.1990 in U.P. State
Transport Corporation. He was issued
charge
sheets
dated
21.1.1981
and
24.10.1981
for
carrying
passengers
without ticket on four occasions in order
to embezzle the Corporation revenue. His
services were terminated by order dated
20.4.1982
passed
by
the
Assistant