# Rahul Shukla & Anr v. Executive Officer, Nagar Palika Parishad, Ghaziabad

- **Citation:** (2014) 2 ILRA 842
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-03
- **Case number:** Civil Misc. Writ Petition No. 33525 of 2014
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahul-shukla-anr-v-executive-officer-nagar-palika-parishad-ghaziabad-42990
- **Pages:** 3

## Headnote

U.P. Act No. 13 of 1972-Section 30petitioner are ghatwara-by putting Takhta
and cottage therein-on payment of Rs.
5000/-annual
fee-on
refusal
moved
application-to make deposit under section
30-rejected by authorities below-in absence
of relationship of Land lord and tenantprovisions of section 30-not attracted-heldproper petition dismissed.

Held: Para-14
In the absence of any evidence regarding
existence of relationship of landlord and
tenant, the conclusion is inevitable that
petitioners are mere licencees, who have
been permitted to put Takhat on Brij
Ghat to carry their Jajmani business and
not tenants. Therefore, the provisions of
the Act do not get attracted and Section
30 of the Act does not come into play.

Case Law discussed:
1965 ALJ 722; 1981 Law Suit (Alld.) 563; 1987
(1) Alld. Rent Case 208.

## Text

842 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The application of the petitioner
shall now be considered in terms of the
aforesaid directions.

6. The petition is, accordingly, disposed
of. There shall be no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2014

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 33525 of 2014

Rahul Shukla & Anr. ...Petitioners
Versus
Executive Officer, Nagar Palika Parishad,
Ghaziabad ...Respondent

Counsel for the Petitioners:
Sri Bhuvneshwar Prasad

Counsel for the Respondent:
---

U.P. Act No. 13 of 1972-Section 30petitioner are ghatwara-by putting Takhta
and cottage therein-on payment of Rs.
5000/-annual
fee-on
refusal
moved
application-to make deposit under section
30-rejected by authorities below-in absence
of relationship of Land lord and tenantprovisions of section 30-not attracted-heldproper petition dismissed.

Held: Para-14
In the absence of any evidence regarding
existence of relationship of landlord and
tenant, the conclusion is inevitable that
petitioners are mere licencees, who have
been permitted to put Takhat on Brij
Ghat to carry their Jajmani business and
not tenants. Therefore, the provisions of
the Act do not get attracted and Section
30 of the Act does not come into play.

Case Law discussed:
1965 ALJ 722; 1981 Law Suit (Alld.) 563; 1987
(1) Alld. Rent Case 208.

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

1. Heard Sri Bhuvneshwar Prasad,
learned counsel for the petitioners.

2. The petitioners have preferred this
petition against the order of Civil Judge (Junior
Division) rejecting their application filed under
Section 30 of U.P. Act No.13 of 1972
(hereinafter referred to as the Act) and the order
of revisional court dismissing the revision
arising therefrom.

3. The aforesaid orders are dated
30.9.2011 and 21.4.2014 respectively.

4. The petitioners applied for
depositing rent in court under Section 30 of
the Act contending that they are carrying
'Jajmani' work on the banks of Ganga at Brij
Ghat. They are providing service of
Tilak/Chandan to pilgrims and for the
purpose pays Rs.500/- per annum to the
Nagar Palika Parishad. They have lastly paid
the aforesaid amount for the year 2005-06.
Since the Nagar Palika Parishad thereafter
has refused to accept it, they may be
permitted to deposit the rent in court.

5. Section 30 of the Act contemplates
deposit of rent in court in two contingencies
namely where there is bona fide doubt or
dispute as to the person to whom the rent is
payable or where the landlord refuses to
accept the rent of the building from the tenant.

6. A bare reading of Section 30 of the
Act makes it clear that it is attracted where
there is a doubt or dispute as to the person to
whom the rent is payable or where the
landlord refuses to accpet the rent of a
building
from
the
tenant.
2 All]. Rahul Shukla & Anr. Vs. Executive Officer, Nagar Palika Parishad, Ghaziabad
843

7. In other words existence of
relationship of landlord and tenant in
relation to a building are the twin
conditions necessary for applying Section
30 of the Act.

8. The petitioners contends that
they have put a Takhat and a Chappar
over the open space and the structure is
within the purview of the definition of a
building of which they are the tenants. In
support they have relied upon certain
decisions. The first is of second appeal in
the case of Ram Dulare Vs. D.D. Jain
and others 1965 ALJ 722 wherein the
court has considered the meaning of the
word 'accommodation' and has held that
any building which provide shelter
including a flimsy structure like a Jhopri
which thatched roof would be covered in
it.

9. The other decision is of Anwar
Ahmad Vs. IVth Additional District
Judge, Saharanpur 1981 Law Suit (Alld.)
563. This decision is based upon Ram
Dulare (Supra) and holds that building
means a roofed structure whether made of
wood or otherwise.

10. Similarly in Abdul Hamid Vs.
District Judge, Sitapur and others 1987
(1) Alld. Rent Cases 208 it was held that a
wooden shop attached with a Pucca shop
is a fixture to the main shop and would be
a building within the meaning of Section
3(i) of the Act.

11. Notwithstanding the above
decisions and the fact that a thatched
Chappar with a Takhat may be construed
to be a building the provisions of Section
30 of the Act would not be attracted
unless
the
relationship
of
landlord
between the parties is proved to establish
the tenancy.

12. The Nagar Palika Parishad
alleges that petitioners are mere licencees.
This
fact
stands
accepted
by
the
petitioners
by
necessary
implication
which can be inferred from their own
application which has been filed under
Section 30 of the Act. The said
application reveals that the petitioners
intended to deposit Shulk (Fees) i.e.
licence fee and not rent in respect of the
above space/structure. It clearly proves
that petitioners do not claim themselves to
be tenants and there is no relationship of
landlord and tenant between the two.

13. The petitioners have not brought
on record any material to prove that they are
tenants of the structure. The receipt of
Rs.500/- filed by them also does not
mention the petitioners to be tenant rather as
Shulk realized from Chandan Ghatwalia.

14. In the absence of any evidence
regarding existence of relationship of
landlord and tenant, the conclusion is
inevitable that petitioners are mere licencees,
who have been permitted to put Takhat on
Brij Ghat to carry their Jajmani business and
not tenants. Therefore, the provisions of the
Act do not get attracted and Section 30 of the
Act does not come into play.

15. In view of the aforesaid facts and
circumstances, the courts below have not
erred in law in rejecting their application and
in refusing to permit them to deposit any
amount under Section 30 of the Act.

16. The writ petition has no merit
and is dismissed.
--------
844 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2014

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 34091 of 2014

Shiv Shankar ...Petitioner
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manish, Sri Gajala Srivastava

Counsel for the Respondents:
C.S.C., Sri Mahesh Narain Singh

Constitution of India, Art.-226-Practice and
Procedure-order obtained by concealment of
dismissal of earlier suit-between same
party-held-fraud vitiate every thing-even
otherwise subsequent suit between same
parties in respect of same subject matterbarred by principle of resjudicata-petition
dismissed with cost of Rs. 25,000/-=.

Held: Para-9
It is settled law that fraud and justice
cannot live together. If something has been
obtained by playing fraud and the factum of
fraud is not disputed, then that thing
becomes non-est. Here, factum of filing of
earlier suit for the same land has not been
disputed by the petitioner's counsel

Case Law discussed:
(1994) 1 SCC 1; (2007) 4 SCC 221; SCC p. 231
para 22; (2008) 12 SCC 481; (2010) 8 SCC 383;
2011 (3) ACR 3544(SC); 2012 (6) ADJ 246.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri Manish, learned counsel
for the petitioner and learned Standing
Counsel appearing for the State respondents.

2. This writ petition has been filed
for issuing a writ of certiorari quashing
the orders dated 28.3.2014 passed by the
learned Member Board of Revenue in
Revision No. 44 of 2013-14 (Shiv
Shanker Vs. State of U.P. and others) and
order dated 15.2.2014 passed by the SubDivisional Officer in Case No. 98/2004
(Gram Sabha Dhaulana and others Vs.
Shiv Shanker.

3. Vide order dated 15.2.2014,
restoration application filed by the Gaon
Sabha seeking setting aside the judgment
and decree dated 6.6.2005 has been
allowed after condoning the delay and the
case was restored to its original number.
Whereas by the subsequent order dated
28.3.2014, the petitioner's revision filed
against the order dated 15.2.2014 has
been dismissed.

4. While assailing these orders,
learned
counsel
for
the
petitioner
contends that the petitioner has filed Suit
No. 98 of 2004 (Shiv Shankar Vs. State of
U.P. and others) under Section 229-B of
U.P.Zamindari
Abolition
and
Land
Reforms Act, 1950 ( in short ' the Act')
impleading State of U.P. as well as Gaon
Sabha as defendants and both have filed
their written statement. The suit was
decreed on 6.6.2005.

5. Aggrieved by the judgment and
decree dated 6.6.2005, State of U.P. has
filed an appeal, which was numbered as
Appeal No. 64 of 2004-05. The appeal too
had been dismissed by the Additional
Commissioner (III) Meerut Division,
Meerut vide judgment and order dated
4.2.2009.

6. It is after seven years, the Gaon
Sabha has filed restoration application
under Order IX, Rule 13 of Code of Civil
Procedure seeking setting aside the