# Roop Kishore Agarwal and others v. IV Additional District Judge, Bareilly and others

- **Citation:** (2006) 2 ILRA 940
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-30
- **Case number:** Civil Misc. Writ Petition No. 53010 of 2000
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/roop-kishore-agarwal-and-others-v-iv-additional-district-judge-bareilly-and-40698
- **Pages:** 5

## Headnote

Sri B.D. Mandhyan
Sri A.N. Sinha
Sri Satish Mandhyan
S.C.

U.P.
Urban
Building
Regulation
(Regulation of letting Rent and Eviction)
Act 1972-S-16-Release application-On
the ground of sub-let the shop in
question-plea of joint Hindu Family
taking-Act 1972 prohibit creation of
partnership-lease
deed
registered
in
August 99-No document produced about
registered partnership-finding recorded
by
the
courts
below-warrant,
no
interference-direction issued to vacate
the
property
within
six
month-on
payment of Rs.9000/- rent instead of
Rs.1500/-.

Held: Para 8 & 9

Trial court has found that sub-letting
stands proved even by the statement of
DW3 Roop Kishore Agarwal. He admitted
that he was looking after the Income Tax
matters but he could not say that any
partnership deed was registered with
Income
Tax
Department.
He
also
admitted that another firm in the name
of M/s Cage and Cage was also working
of which Aasha Agarwal defendant No.2
was the owner. He could not file any
documentary evidence to show that
there was
any
partnership firm in
between him and his brothers. He also
admitted that all the three brothers were
residing separately and suit for partition
in between defendants and their other
family members had also been decreed
in 1980-81. He also admitted that on the
date when registered lease deed was
executed his father was present at
Bareilly. The trial court from the said fact
rightly held that all the three brothers
were carrying on separate business from
the accommodation in dispute and were
paying tax separately. Trial court further
held that defendant failed to show that
in the Income Tax Department they had
shown in their income tax return that
they were doing business in partnership
with the name of Agarwal Brothers.

It has been held by the Supreme Court in
Harish Tandon Vs. A.D.M AIR 1995 SC
676 that if son-in-law is made partner of
the firm it gives rise to vacancy and subletting under U.P Act No. 13 of 1972.
Case law discussed:
2000 (4) ALR 636 (SC)
2004 (4) SCC-794
AIR 1992 SC-66
AIR 1995 SC-676

## Text

940 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
2. I have heard Sri Gyanendra
Kumar Singh, learned counsel appearing
for the petitioner as well as learned
Standing Counsel appearing for the Staterespondents. With consent of learned
counsel for the parties, this writ petition is
being disposed of without calling for a
counter affidavit.

3. Rule 14 of the U.P. Panchayat Raj
(Election of Members, Pradhans and UpPradhans), Rules, 1994 (in short Rules of
1994) provides that the general election of
the Gram Pradhans ought to be held by
the District Magistrate in accordance with
the
directions
the
State
Election
Commission. Rule 115 of the Rules,
which relates to bye-elections, provides
that in case of a casual vacancy in the
office of Pradhan, the District Magistrate
shall, as soon as may be, appoint the date,
time and place for various stages of byeelection in accordance with Rule 14.

4. The submission of learned
counsel for the petitioner is that although
more than nine months have passed since
the vacancy on the post of Pradhan had
occurred but till date the respondents have
not taken steps to fill up the post, as is
required under the Rules and have merely
appointed a committee to carry out the
development work of the village. Learned
counsel for the petitioner further contends
that in the absence of an elected Pradhan
of his village, besides the development,
other works are also suffering because of
which the petitioner as well as the other
villagers are suffering.

5. Under the Act as well as the
Rules, the respondent no.3, District
Magistrate, Ghazipur is obliged to take
steps to fill up the post as soon as
possible, after the vacancy on the post of
Pradhan occurs. In the present case, nine
months have passed but the post of
Pradhan has not been filled up. Thus, it is
a fit case for issuance of a writ of
mandamus directing the respondents for
filling up the post of Pradhan of the
village in question.

6. Accordingly, it is directed that the
District Magistrate, Ghazipur, respondent
no.3 shall take immediate steps to fill up
the post of Pradhan Gram Sabha Balua
Tappa
Kathaut
(Hariharpur),
Block
Mohammadabad, District Ghazipur in
accordance with the provisions of U.P.
Panchayat Raj Act, 1947 as well as Rules
1994 and hold the election and complete
the process as expeditiously as possible,
preferably within a period of three months
from today but not later than four months.

7. This writ petition stands allowed
to the extent indicated above. No order as
to costs.

8. The office is directed to supply a
certified copy of this order to the learned
Standing Counsel within a week, free of
charge, for necessary compliance.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2006

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 53010 of 2000

Roop Kishore Agarwal and others
 ...Petitioners
Versus
IV Additional District Judge, Bareilly and
others

 ...Respondents
2 All] Roop Kishore Agarwal and others V. IV A.D.J., Bareilly and others
941
Counsel for the Petitioners:
Sri P.K. Jain
Sri K.M. Garg
Sri Lal Vijay Singh

Counsel for the Respondents:
Sri B.D. Mandhyan
Sri A.N. Sinha
Sri Satish Mandhyan
S.C.

U.P.
Urban
Building
Regulation
(Regulation of letting Rent and Eviction)
Act 1972-S-16-Release application-On
the ground of sub-let the shop in
question-plea of joint Hindu Family
taking-Act 1972 prohibit creation of
partnership-lease
deed
registered
in
August 99-No document produced about
registered partnership-finding recorded
by
the
courts
below-warrant,
no
interference-direction issued to vacate
the
property
within
six
month-on
payment of Rs.9000/- rent instead of
Rs.1500/-.

Held: Para 8 & 9

Trial court has found that sub-letting
stands proved even by the statement of
DW3 Roop Kishore Agarwal. He admitted
that he was looking after the Income Tax
matters but he could not say that any
partnership deed was registered with
Income
Tax
Department.
He
also
admitted that another firm in the name
of M/s Cage and Cage was also working
of which Aasha Agarwal defendant No.2
was the owner. He could not file any
documentary evidence to show that
there was
any
partnership firm in
between him and his brothers. He also
admitted that all the three brothers were
residing separately and suit for partition
in between defendants and their other
family members had also been decreed
in 1980-81. He also admitted that on the
date when registered lease deed was
executed his father was present at
Bareilly. The trial court from the said fact
rightly held that all the three brothers
were carrying on separate business from
the accommodation in dispute and were
paying tax separately. Trial court further
held that defendant failed to show that
in the Income Tax Department they had
shown in their income tax return that
they were doing business in partnership
with the name of Agarwal Brothers.

It has been held by the Supreme Court in
Harish Tandon Vs. A.D.M AIR 1995 SC
676 that if son-in-law is made partner of
the firm it gives rise to vacancy and subletting under U.P Act No. 13 of 1972.
Case law discussed:
2000 (4) ALR 636 (SC)
2004 (4) SCC-794
AIR 1992 SC-66
AIR 1995 SC-676

(Delivered by Hon'ble S.U. Khan J.)

1. This is tenants' writ petition
arising out of suit for eviction filed by
landlord respondent No.3 Ramesh Chand
Agarwal in the form of SCC suit No. 32
of 1994. Landlord stated in the plaint of
the suit that property in dispute which is
in the form of two shops was let out
through registered lease deed to Roop
Kishore Agarwal petitioner No.1 however
he had sublet the same to petitioner No 2
and 3 Smt Aasha Agarwal and Sri Ashok
Kumar Agarwal. Smt Aasha Agarwal is
wife of Sudhir Agarewal who is real
brother
of
Roop
Kishore
Agarwal
petitioner defendant No.3. Ashok Kumar
is also real brother of Roop Kishore
Agarwal. Property was let out through
registered lease deed in August 1969.

2. Defendants took up the case that
accommodation in dispute was taken on
rent by Hindu Undivided Family (HUF)
of which all the three brothers were
members and their father Vishan Narain
Agarwal was Karta hence there was no
sub-letting. Trial court did not believe the
942 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
version of the tenants. Trial court held
that brother and brother's wife are not
members of family as defined under
section 3(g) of the Act hence sub-letting
was
established.
Additional
JSCC,
Bareilly decreed the suit for eviction
through judgment and decree dated
7.8.99. It may be mentioned that the rent
of the shop in dispute is Rs. 75/- per
month. Against judgment and decree
passed by the trial court, petitioners filed
SCC Revision No. 25 of 99. IV A.D.J,
Bareilly through judgment and order
dated 24.10.2000, dismissed the revision
hence this writ petition.

3. In my opinion, both the courts
below have rightly held that building in
dispute was not allotted to HUF. Courts
below rightly held that in case building
had been let out to HUF it should have
been mentioned in the registered lease
deed while the said deed was only in
between landlord and Roop Kishore
Agarwal
petitioner
defendant
No.1.
Courts below also rightly held that in case
building in dispute had been let out to
HUF then the lease should have been in
favour of father of defendant No.1 and 3
as he was alive at the time of execution of
lease deed and he was Karta of HUF.

4. It is true that creation of
partnership by the tenant was not
prohibited under old Rent control Act
(U.P Act No. 3 of 1947). U.P Act No. 13
of 1972 for the first time prohibited
creation of partnership by the tenants.
However defendants petitioners did not
take any such case that after lease of the
shop in dispute and before July 1972
when U.P Act No. 13 of 1972 was
enforced any formal partnership took
place among them. In fact defendants did
not plead that at any point of time any
formal partnership was entered into in
between them. The only defence was that
building in dispute was let out to HUF
hence they all were entitled to do business
there from.

5. In respect of default, both the
courts below have held that as tenant had
deposited entire arrears of rent, interest
and cost of the suit on the first date of
hearing hence they were entitled to
benefit of section 20(4) of the Act.

6. Learned counsel for the tenant has
argued that landlord in his oral statement
copy of which is annexure 5 to the writ
petition admitted that the firm with the
name of Agarwal Brothers having three
partners who were doing business from
the shop in dispute since long was the
tenant. In the said statement there is no
such admission.

7. Learned counsel for the tenant has
cited several authorities in respect of subletting including the authority of Supreme
Court reported in Resham Singh Vs.
Raghubir Singh 2000(4) ALR 636 (SC).
In the said authority, the tenant had gone
underground due to pendency of criminal
case against him and in his absence his
brother was looking after the business
from the tenanted shop. In such situation
Supreme Court held that there was no
sub-letting. The said authority is not at all
applicable to the facts of the instant case.
The authority reported in P. Singh Vs. R.
Gautam 2004(4) SCC 794 has also been
cited. The said authority was from
Himachal Pradesh. In the said authority it
was held that if partnership was a device
to cover the sub-letting then it amounted
to sub-letting. In the instant case it has
been found that all the three defendants
were carrying on their independent
2 All] Roop Kishore Agarwal and others V. IV A.D.J., Bareilly and others
943
business from the shop in dispute hence
the said authority is not applicable.
Learned counsel for the tenant has also
cited C.M. Shah Vs. CIT AIR 1992 SC
66 dealing with the concept of HUF. In
the instant case it has been held that
building was not let out to HUF.

8. Trial court has found that subletting stands proved even by the
statement
of
DW3
Roop
Kishore
Agarwal. He admitted that he was looking
after the Income Tax matters but he could
not say that any partnership deed was
registered with Income Tax Department.
He also admitted that another firm in the
name of M/s Cage and Cage was also
working
of
which
Aasha
Agarwal
defendant No.2 was the owner. He could
not file any documentary evidence to
show that there was any partnership firm
in between him and his brothers. He also
admitted that all the three brothers were
residing separately and suit for partition in
between defendants and their other family
members had also been decreed in 198081. He also admitted that on the date
when registered lease deed was executed
his father was present at Bareilly. The
trial court from the said fact rightly held
that all the three brothers were carrying
on
separate
business
from
the
accommodation in dispute and were
paying tax separately. Trial court further
held that defendant failed to show that in
the Income Tax Department they had
shown in their income tax return that they
were doing business in partnership with
the name of Agarwal Brothers.

9. It has been held by the Supreme
Court in Harish Tandon Vs. A.D.M AIR
1995 SC 676 that if son-in-law is made
partner of the firm it gives rise to vacancy
and sub-letting under U.P Act No. 13 of
1972.

I do not find any error in the findings
of the courts below in respect of subletting.

Accordingly
writ
petition
is
dismissed.

Tenant petitioner No.1 is granted six
months time to vacate provided that:

(1) Within one month from today he
files an undertaking before the
prescribed authority to the effect that
on or before the expiry of period of
six months he will willingly vacate
and handover possession of the
property in dispute to the landlord
respondent.
(2) For this period of six months, which
has been granted to the petitioner to
vacate
he
is
required
to
pay
Rs.9000/- (at the rate of Rs.1500/-
per month) as damages for use and
occupation. This amount shall also
be deposited within one month
before the prescribed authority and
shall immediately be paid to the
landlord respondent.

10. It is further directed that in case
undertaking is not filed or amount of
Rs.9000/- is not deposited within one
month then tenant petitioner No.1 shall be
liable to pay damages at the rate of
Rs.3000/- per month since after one
month till the date of actual vacation.

11. Similarly if after filing the
aforesaid undertaking and depositing Rs.
9000/-, the property in dispute is not
vacated on the expiry of six months then
damages for use and occupation shall be
944 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
payable at the rate of Rs.3000/- per month
since after six months till actual vacation.

 Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2006

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 69970 of 2005

Abhay Kumar Tripathi
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Aditya Kumar Tripathi
S.C.

Counsel for the Respondents:
Sri Neeraj Tiwari
S.C.

Constitution of India Act 226,-Use of
unfair means -by notice of 10.06.05
university charged the petitions for
attempting the answer in paper III
economics :- Petitioner send reply on
20.9.05- No specific finding about use of
there chits in the answer book for
arbitrary attitude of the anchorites loss
of 2 year carriers of petitioner can not be
over sighted general mandamus issued
with certain necessary guide lines for
university:

Held- Para 8

It must be borne in mind that where the
career of a young man is at stake, every
body concerned must be anxious that if
the charge of malpractice is being
pursued the enquiry should be brought
to as speedy a conclusion as possible and
should be conducted in such a manner as
to give not the least room for complaint.
In the instant case, the loss of two years
is a big blow to the career of the
petitioner and delay in the matter can
safely be attributed to the indifference
and arbitrary attitude of the authorities
concerned. In the circumstances, it
would be in the fitness of things that the
Court should take proactive attitude to
repair the loss and harassment suffered
by the petitioner.

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Impugned herein is the notice
dated
10.6.2005
issued
under
the
signatures
of
Asstt.
Kul
Sachiv
(Confidential) Chhatrapati Sahuji Maharaj
University, Kanpur Nagar (hereinafter
referred to as the University) served to the
petitioner listing therein the charge that
the petitioner had used unfair means in
the course of attempting the answers of
question paper no. III (Economics) while
appearing in B.A.III year examination and
further that one printed piece of paper was
seized from his possession.

2. It would transpire from the record
that reply to the aforesaid notice was
submitted on 20.9.2005 by the petitioner
but result of the aforesaid examination
was not declared and hence, the present
petition came to be instituted seeking the
relief that respondent no.2 be directed to
declare result of the petitioner of B.A. 3rd
year examination conducted in the year
2005.

3. This Court, by means of order
dated 10.11.2005 granted one month's
time to produce relevant record attended
with the direction to also file counter
affidavit. Sri Neeraj Tiwari, appearing for
the University, filed counter affidavit
today and also supplementary counter
affidavit. Alongwith the supplementary
counter affidavit, the learned counsel has
also filed copy of order dated 25.7.2005