# Smt. Prema Devi v. Sri Shri Kishna Agrawal

- **Citation:** (2024) 7 ILRA 168
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-03
- **Case number:** Writ A No. 1000034 of 2001
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-prema-devi-v-sri-shri-kishna-agrawal-52227
- **Pages:** 10

## Headnote

A. Civil Law - landlord-tenant dispute- suit
decreed for all reliefs prayed- ejectment, arrears
of rent, water tax, drainage tax, damages and
costs - revisional order as well as judgement
decreeing the suit-under challenge- petition
disposed of.
7 All. Smt. Prema Devi Vs. Sri Shri Kishna Agrawal
169
B. Whether the amount deposited by the
respondent/tenant
would
be
treated
as
deposited prior to the first date of hearing or
not- what would be the first date of hearingSection 20(4) of the Act of 1972- it is settled
preposition of law that the first date of hearing
would not be the date when the written
statement is filed by the respondent/defendant-
the first date of hearing would be the date on
which the court applies its mind to the facts and
controversy involved in the case-this date may
be said to be the date for framing of issues
when the court applies its mind to the facts of
the case- the amount demanded by the
petitioner in the suit was deposited by the
tenant/respondent on the date fixed for framing
of the issues prior to framing of the issues-
respondent is entitled for the benefit of Section
20
(4)
of
the
Act,
1972,
as
the
respondent/tenant has deposited the amount
demanded by the landlord prior to the first date
of hearing. (Para 13)

HELD:
After going through the judgments of the
Hon'ble Supreme Court, it is settled preposition
of law that the first date of hearing would not
be the date when the written statement is filed
by the respondent/defendant. The first date of
hearing would be the date on which the court
applies its mind to the facts and controversy
involved in the case and this date may be said
to be the date for framing of issues when the
court applies its mind to the facts of the case. It
is undisputed fact between the parties that the
amount demanded by the petitioner in the suit
was deposited by the tenant/respondent on the
date fix for framing of the issues prior to
framing of the issues so the respondent is
entitled for the benefit of Section 20 (4) of the
Act, 1972, as the respondent/tenant has
deposited the amount demanded by the
landlord prior to the first date of hearing.
(Para13)

C. What would be the effect of being
tenant/respondent the owner of residential
building to deprive him the benefit of Section 20
(4) of the Act- proviso to Section 20 (4) would
be attracted only to those cases where the
building under tenancy is in the use of the
tenant for residential purpose- If the building
under tenancy is being used by the tenant for
the
commercial
or
business
purposes-
acquisition by the tenant of a residential
accommodation cannot, in the context of things,
be relevant for determining whether the tenant
ought not be held entitled to claim the benefit
contemplated under Section 20 (4) of the
Act,1972-it is an admitted case that it is a
residential house in which the respondent is
residing with his family -no evidence was led
before the trial c

## Text

168 INDIAN LAW REPORTS ALLAHABAD SERIES
 3. Change of date of birth-Bona fide
mistake.-The date of birth can be changed
only if there was a bona fide mistake. The
principle of estoppel will apply and hence
when
the
Government
servant
had
indicated a particular date of birth in his
application form or any other document at
the time of employment the Court should
not change that date of birth."

12. From bare reading of the aforesaid
provisions, it is clear that date of birth of
employee who has not passed the High
School Certificate cannot be changed once
originally recorded at the time of entry in
service.

13. In my above view I find support
in the judgments of a coordinate benches
of this court in the case of Surendra
Singh v. State of U.P and Others, 2019
5 ADJ 365, and of the Division Bench
judgment in the case of Mohan Singh v.
U.P. Rajya Vidyut Utpadan Ltd. And
Others, 2012 (8) ADJ 383.

15 . The Courts have repeatedly held
that actions to be taken by the authorities
must be sound and reasoned one, more
especially in service cases where interest
of employees is at a stake and so
respondents authorities are not supposed
to act an arbitrary manner. The method in
which the Chairman in the present case
had passed the order impugned retiring
the petitioner without assigning any
reason except relevant policy bond paper
and that too without holding any enquiry.
This was totally unwarranted .

16. It is unfortunate that District
Magistrate in the matter has acted in a
colourable exercise of power in holding
such enquiry in a hush-hush manner. It
was a case where he ought to have
applied his mind, more especially when
he is officer of Indian Administrative
Service.

17. In view of above, the writ
petition succeeds and is allowed. The
order passed by the Chairman Nagar
Panchayat,
Dohri
Ghat
Mau
dated
28.8.2014
is
hereby
quashed.
The
petitioner shall be reinstated in service
and shall be taken to be in service until
31st December, 2023 and shall be paid
salary accordingly. Whatever the amount
has been paid towards retirement dues
may be adjusted against salary and fresh
post retirement dues shall be assessed and
fixed and accordingly revised payment
shall be made.
----------
(2024) 7 ILRA 168
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.07.2024

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ A No. 1000034 of 2001

Smt. Prema Devi ...Petitioner
Versus
Sri Shri Kishna Agrawal ...Respondent

Counsel for the Petitioner:
Ram Karan Agrawal, Anadi K. Sinha, Ram
Karan
Agrawal,
Shatrughna
Awasthi,
Virendra Mishra

Counsel for the Respondent:
C.S. Pandey, Mohammad Adil Khan

A. Civil Law - landlord-tenant dispute- suit
decreed for all reliefs prayed- ejectment, arrears
of rent, water tax, drainage tax, damages and
costs - revisional order as well as judgement
decreeing the suit-under challenge- petition
disposed of.
7 All. Smt. Prema Devi Vs. Sri Shri Kishna Agrawal
169
B. Whether the amount deposited by the
respondent/tenant
would
be
treated
as
deposited prior to the first date of hearing or
not- what would be the first date of hearingSection 20(4) of the Act of 1972- it is settled
preposition of law that the first date of hearing
would not be the date when the written
statement is filed by the respondent/defendant-
the first date of hearing would be the date on
which the court applies its mind to the facts and
controversy involved in the case-this date may
be said to be the date for framing of issues
when the court applies its mind to the facts of
the case- the amount demanded by the
petitioner in the suit was deposited by the
tenant/respondent on the date fixed for framing
of the issues prior to framing of the issues-
respondent is entitled for the benefit of Section
20
(4)
of
the
Act,
1972,
as
the
respondent/tenant has deposited the amount
demanded by the landlord prior to the first date
of hearing. (Para 13)

HELD:
After going through the judgments of the
Hon'ble Supreme Court, it is settled preposition
of law that the first date of hearing would not
be the date when the written statement is filed
by the respondent/defendant. The first date of
hearing would be the date on which the court
applies its mind to the facts and controversy
involved in the case and this date may be said
to be the date for framing of issues when the
court applies its mind to the facts of the case. It
is undisputed fact between the parties that the
amount demanded by the petitioner in the suit
was deposited by the tenant/respondent on the
date fix for framing of the issues prior to
framing of the issues so the respondent is
entitled for the benefit of Section 20 (4) of the
Act, 1972, as the respondent/tenant has
deposited the amount demanded by the
landlord prior to the first date of hearing.
(Para13)

C. What would be the effect of being
tenant/respondent the owner of residential
building to deprive him the benefit of Section 20
(4) of the Act- proviso to Section 20 (4) would
be attracted only to those cases where the
building under tenancy is in the use of the
tenant for residential purpose- If the building
under tenancy is being used by the tenant for
the
commercial
or
business
purposes-
acquisition by the tenant of a residential
accommodation cannot, in the context of things,
be relevant for determining whether the tenant
ought not be held entitled to claim the benefit
contemplated under Section 20 (4) of the
Act,1972-it is an admitted case that it is a
residential house in which the respondent is
residing with his family -no evidence was led
before the trial court whether it can be used for
the commercial purposes-petition devoid of
merit-dismissed.(Paras 20 and 23)
HELD:
As per the law settled in the case of Sunil Kumar
Mukherji Vs Kabiraj Bindo Madho Bhattachaya
and others reported in (1977) 11 AHC CK 0010
and in the case of Sheo Nath Prasad Vs IIIrd
Additional District Judge and others reported in
Allahabad Rent Cases, 1981 Page No. 207,
wherein it has been held that the purpose of the
proviso is clear and it is that in case the
petitioner has an alternative accommodation
which can be used for the purpose for which he
occupied the building under his tenancy, he
should not be given the benefit of sub-section 4
of Section 20 of the Act, 1972. It is also held by
this Court that proviso to Section 20 (4) would
be attracted only to those cases where the
building under tenancy is in the use of the
tenant for residential purpose. If the building
under tenancy is being used by the tenant for
the commercial or business purposes, it is
obvious that the acquisition by the tenant of a
residential
accommodation
cannot,
in
the
context of things, be relevant for determining
whether the tenant ought not be held entitled to
claim the benefit contemplated under Section 20
(4) of the Act, 1972. (Para 20)

After considering the facts and circumstances
and discussions made above, now it is not
necessary to replicate on the issue of the notice
served by the petitioner to the respondent. The
deposit as demanded by the petitioner from the
respondent prior to the framing of the issues is
admitted by both the parties i.e. by the learned
counsel for the petitioner and learned counsel
for the respondent hence amount was deposited
on the first date of hearing, prior to the framing
of the issues. The property which the petitioner
has alleged in his reply to the objection filed by
the respondent in a suit, it is an admitted case
that it is a residential house in which the
170 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent is residing with his family and it is
also admitted that no evidence was led before
the trial court whether it can be used for the
commercial purposes or not and nor it has been
mentioned that it is being used by the
respondent for commercial purposes, assuch the
petition is devoid of merit and is liable to be
dismissed. (Para 23)

Petition dismissed. (E-14)

List of Cases cited:-

1.Samar Pal Singh Vs Chitranjan Singh reported
in 2015 (3) ARC 463

2.Heera Lal Vs IInd ADJ & anr.,2010 2 ARC 31

3.Siraj Ahmad Siddiqui Vs Shri Prem Nath
Kapoor report in AIR 1993 SC 2525

4.Mam Chand Pal Vs Smt. Shanti Agrawal
reported in 2002 1 Allahabad Rent Cases 37 0

5.Sunil Kumar Mukherji Vs Kabiraj Bindo Madho
Bhattachaya & ors. reported in (1977) 11 AHC
CK 0010

6.Sheo Nath Prasad Vs IIIrd Additional District
Judge & ors. reported in Allahabad Rent Cases,
1981 Page No. 207

(Delivered by Hon'ble Manish Kumar, J.)

1. The present writ petition has been
preferred for setting aside the revisional order
dated 12.12.2000 passed by the XIth Additional
District, Judge, Lucknow in SCC Revision No.
107 of 1998 (Smt. Prema Devi Vs. Sri Shri
Krishna Agarwal) and judgment and order
dated 17.3.1998 passed by the Ist Additional
Judge Small Causes Courts, Lucknow in S.C.C.
Suit No. 71 /83 (Smt. Prema Devi Vs. Sri
Krishna) and decreeing the said suit for all the
reliefs prayed for i.e. ejectment, arrears or rent,
water tax, drainage tax, damages and costs.

2. Learned counsel for the petitioner
has submitted that the respondent was a
tenant of the shop situated at 12 Gautam
Budh Marg Lucknow belonging to the
petitioner at a monthly rent of Rs. 100/-
The respondent had defaulted in payment
of arrears of rent, water tax and the
drainage charges. The petitioner had served
a notice dated 24.9.1983 terminating the
tenancy and directing the respondent to pay
the arrears within a particular period and
failing
which
to
vacate
the
shop
immediately.

3. It is further submitted that when the
respondent had neither paid the arrears nor
vacated the shop, the petitioner preferred a
suit under Section 20 of the Uttar Pradesh
Urban Building (Regulation of Letting,
Rent and Eviction) Act, 1972 (hereinafter
referred to as " the Act, 1972") before
Judge Small Causes. The suit preferred by
the petitioner was dismissed by the
impugned
judgement
dated
17.3.1998
against which the revision was preferred
under Section 25 of The Provincial Small
Cause Courts Act, 1887, which was also
dismissed by the impugned order dated
12.12.2000.

4. It is further submitted that the
learned trial court had failed to appreciate
that the respondent i.e. the tenant had not
deposited the arrears of rent and other dues
on the first date of hearing of the suit as
required under Section 20 (4) of the Act,
1972. The court below had also failed to
appreciate that the respondent had a
residential house in the city/within the
same municipality hence as per the proviso
to Sub-section 4 of the Section 20 of the
Act, 1972, the respondent had to vacate the
premises but the same was not considered
by the learned trial court. In support of his
submission,
learned
counsel
for
the
petitioner had relied upon a judgment of
Hon'ble Supreme Court in the case of
7 All. Smt. Prema Devi Vs. Sri Shri Kishna Agrawal
171
Samar Pal Singh Vs. Chitranjan Singh
reported in 2015 (3) ARC 463 and
judgment of the this Court in the case of
Heera Lal Vs. IInd ADJ and Another,
2010 2 ARC 31.

5. It is further submitted that learned
court below had also erred in giving a
finding that the notice served by the
petitioner is in contravention of the lease
deed and was not a valid notice.

6. It is further submitted that the
revisional court had not considered the
illegalities/irregularities committed by the
learned trial court while deciding the suit
and dismissed the revision preferred by the
petitioner mainly on the ground that the
notice was not in consonance with the lease
deed, as the petitioner had first terminated
the tenancy and also demanded the arrears
of rent and other dues as required under
Section 20 (4) of the Act, 1972.

7. On the other hand, Sri Mohammad
Arif Khan, learned Senior Advocate
assisted by Sri Chandra Shekar Pandey has
submitted that the arrears of rent and other
dues as demanded by the petitioner were
deposited prior to the first date of hearing
after receiving summons from the court. A
sum of Rs. 5,456/- was deposited on
15.2.1984 and Rs.560/- was deposited on
22.8.1984 i.e. total demand raised by the
petitioner in the suit prior to framing of the
issues and it is further submitted that first
date of hearing is interpreted by this Court
as well as by the Hon'ble Supreme Court
that first date of hearing is when the court
has applied his mind for adjudication of the
case and in support of his submission,
learned counsel has relied upon the
judgment of Hon'ble Apex Court in case of
Siraj Ahmad Siddiqui Vs. Shri Prem Nath
Kapoor report in AIR 1993 SC 2525 and
the in case of Mam Chand Pal Vs. Smt.
Shanti Agrawal reported in 2002 1
Allahabad Rent Cases 370.

8. It is further submitted that the
house, which has been shown by the
petitioner owned by the respondent is a
residential house and is not being used for
the purposes of commercial activity. The
petitioner has also not adduced any
evidence to show that the property, which
is residential property can be used for
commercial purposes or is being used by
the respondent for commercial purposes. It
was purely a residential house.

9. After hearing the parties and going
through the record and the judgments relied
by both the sides, the issues which are as
below:-

(i) whether the amount deposited
by the respondent/tenant would be treated
as deposited prior to the first date of
hearing or not and;

(ii) what would be the first date
of hearing.

(iii) what would be the effect of
being tenant/respondent the owner of
residential building to deprive him the
benefit of Section 20 (4) of the Act.

10. As per the petitioner first date of
hearing would be when a written statement
was filed by the respondent. The first date
of hearing has been expressed in the statute
in Explanation to the Sub-section 4 of
Section 20 of the Act, 1972. For
convenience
the
same
is
quoted
hereinbelow:-

"--
[Explanation.
For
the
purposes of this sub-section-

(a) the expression "first hearing"
means the first date for any step or
172 INDIAN LAW REPORTS ALLAHABAD SERIES
proceeding mentioned in the summons
served on the defendant;"

11. The said expression "first hearing"
has been interpreted and decided by the
Hon'ble Supreme Court in the case of Siraj
Ahmad Siddiqui (Supra). The relevant
paragraph is quoted hereinbelow:-

"13. The date of first hearing of a
suit
under
the
Code
is
ordinarily
understood to be the date on which the
court proposes to apply its mind to the
contentions in the pleadings of the parties
to the suit and in the documents filed by
them for the purpose of framing the issues
to be decided in the suit. Does the
definition of the expression "first hearing"
for the purposes of Section 20(4) mean
some- thing different? The "step or
proceedings mentioned in the summons"
referred to in the definition should, we
think, be construed to be a step or
proceeding to be taken by the court for it is,
after all, a "hearing" that is the subject
matter of the definition, unless there be
something compelling in the said Act to
indicate otherwise; and we do not find in
the said Act any such compelling provision.
Further, it is not possible to construe the
expression first date for any step or pro-
ceeding" to mean the step of filing the
written statement, though the date for that
purpose may be mentioned in the summons,
for the reason that, as set out earlier, it is
permissible under the Code for the
defendant to file a written statement even
thereafter but prior to the first hearing
when the court takes up the case, since
there is nothing in the said Act which
conflicts with the provisions of the Code in
this behalf. We are of the view, therefore,
that the date of first hearing as defined in
the said act is the date on which the court
proposes to apply its mind to determine the
points in controversy between the parties to
the suit and to frame issues, if necessary."

12.

Subsequently,
in
another
judgment in the case of Mam Chand Pal
(Supra), the Hon'ble Supreme Court has
interpreted the expression "first hearing" as
it has interpreted in the case of Siraj
Ahmad Siddiqui (Supra) and also placed
reliance on catena of cases. The relevant
paragraph in the case of Mam Chand Pal
(Supra) :-

"5. So far the question as to the
meaning of the date of first hearing is
concerned, the position stands well settled
that it is the date on which the Court
applies
its
mind
to
the
facts
and
controversy involved in the case. Any date
prior to such a date would not be date of
first hearing. For instance date for framing
of issues would be the date of first hearing
when the Court is to apply its mind to the
facts of case. As it relates to proceedings
under the Small Causes Courts Act, there
being no provision for framing of issues
any date fixed for hearing of the case
would be the first date for the purpose. The
above stated position is clear from a catena
of cases of the Allahabad High Court and
some decisions of this Court also. In Ved
Prakash Wadhwa v. Vishwa Mohan, AIR
1982 SC 816: 1981 ARC 1 (S.C.), this
Court held that the date of first hearing
would not be before a date fixed for
preliminary examination of parties and
framing of issues. It has further been held
that if the amount is deposited before the
date of first hearing, it would amount to
compliance with the relevant provision of
the Act. In Sudarshan Devi & another v.
Sushila Devi & another, 1999 (8) SCC 31:
1999 (2) ARC 668 (SC), the service of
notice was by publication, hence tenant
applied for copy of the plaint which was
7 All. Smt. Prema Devi Vs. Sri Shri Kishna Agrawal
173
furnished and fresh dates for filing WS and
hearing was fixed. The Court considered
the provisions of sub-section (4) of Section
20 of the Act along with Explanation (a) as
well as series of earlier decisions and held
that the date fixed for hearing of the matter
was the date of first hearing and not the
date fixed for filing of the written statement
it has been observed that the emphasis in
the relevant provision is on the word
'hearing'. The decision in the case of Ved
Prakash (supra) was also relied upon. In
yet another case Advita Nand v. Judge,
Small Causes Court Meerut & Ors., 1995
(3) SCC 407: 1995 (1) ARC 563, the dates
were fixed for filing of the written statement
and later for hearing of the case after
furnishing of a copy of the plaint, it was
held that the Court was to apply its mind to
the facts of the case on the date fixed for
hearing and not earlier on the date fixed
for filing of the written statement."

13.

After
going
through
the
judgments of the Hon'ble Supreme Court, it
is settled preposition of law that the first
date of hearing would not be the date when
the written statement is filed by the
respondent/defendant. The first date of
hearing would be the date on which the
court applies its mind to the facts and
controversy involved in the case and this
date may be said to be the date for
framing of issues when the court applies
its mind to the facts of the case. It is
undisputed fact between the parties that
the amount demanded by the petitioner in
the
suit
was
deposited
by
the
tenant/respondent on the date fix for
framing of the issues prior to framing of
the issues so the respondent is entitled for
the benefit of Section 20 (4) of the Act,
1972,
as
the
respondent/tenant
has
deposited the amount demanded by the
landlord prior to the first date of hearing.

14. As far as the third submission that
the respondent has residential house and as
per proviso to sub-section 4 of Section 20
of the Act, 1972. For convenience, the
same is quoted hereinbelow:-

"Provided that nothing in this
sub-section shall apply in relation to 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."

15. Wherein it is provided that
nothing in sub-section shall apply in
relation to a tenant, who has acquired in a
vacant state, or has got vacated after
acquisition, in residential building in the
same city, municipality, notified area or
town area. The learned counsel for the
petitioner relied upon the judgment of the
Hon'ble Supreme Court in support of his
submission in the case of Samar Pal Singh
Vs. Chitranjan Singh (Supra), the relevant
paragraphs are quoted hereinbelow:-

11. What is vehemently argued
before us on behalf of the landlord is that
in view of the proviso to sub-section (4) of
Section 20, since the defendants have
acquired as many as four houses within
municipal limits of the city, as such, they
are not entitled to protection provided
under the sub-section. On the other hand,
on behalf of the tenants, it is contended that
the proviso to sub-section (4) deprives a
tenant only if he has built or otherwise
acquired a residential house in a vacant
state in the city and in this connection it is
further submitted that properties acquired
by tenants are commercial.

12. From the language of subsection quoted above, it is clear that under
the proviso it is provided that nothing in
174 INDIAN LAW REPORTS ALLAHABAD SERIES
the sub-section could 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. Learned counsel for the
tenant/respondent did not dispute that the
respondent has acquired property Nos.
621, 42, 43 and 72 in the municipal limits
of Mowana (District Meerut). What the
High Court has held is that the proviso
deprives the tenant of the protection under
sub-section (4) only if he has acquired
residential building. On carefully going
through the record, we are unable to
agree with the High Court that none of
the properties acquired by the tenant are
residential. (emphasis laid) From the
evidence on record, it is clear that only
property no. 621 and property no. 42 are
shops. The record reveals that property no.
43 consists of two rooms, one hall on the
ground floor, and one room with Sehan on
the first floor and property no.72 consists
of five rooms. There is no specific finding
that the nature of these two buildings is
exclusively commercial. In our opinion,
High Court has erred in law by treating
these
two
properties
as
commercial
without there being evidence to that effect.
A building which can be used for
residential as well as commercial purposes
cannot be said to be excluded from the
clutches of proviso to sub-section (4), if
built, or acquired in vacant state within
limits of the municipal area in which the
house from which eviction is sought by the
landlord Needless to say in the present
case building in question was let out for
residential-cum-commercial
purposes.(emphasis laid)

13. It cannot be said that object
of sub-section (4) of Section 20 is to protect
those tenants who have built, or acquired
in vacant state a house which can be used
for residential as well as commercial
purposes. If word "residential" mentioned
in the proviso is taken to mean what has
been interpreted by the High Court, the
object of the proviso would get defeated. As
such, in our opinion, the High Court has
erred in law in reversing the judgment and
decree passed by the Judge Small Cause
Court.

16. Learned counsel for the petitioner
has also relied upon the judgment of this
Court in the case of Heera Lal (Supra).
The relevant paragraph no. 5 is quoted
hereinbelow.

"5. It is urged on behalf of the
petitioner that the finding of the trial Court
that the petitioner tenant was not defaulter,
was never set aside by the revisional Court.
After going through the order of the
prescribed authority, the Counsel for the
petitioner has failed to point out any such
finding. In fact the trial Court had come to
the conclusion that the petitioner was a
defaulter but due to the deposit of rent in
Court, it gave the benefit of Section 20(4)
of the Act. Further, once it was proved
from the evidence on record that the tenant
had acquired a residential building within
the same municipal limit, he would not be
entitled to protection granted under Section
20(4) of the Act. Thing finding of fact has
not been shown to be either perverse or
without any evidence."

17. The said submission of the
learned counsel for the petitioner that a
specific plea was taken while replying the
objection
preferred
by
the
respondent/tenant in the suit that the
respondent/tenant had constructed a house
in which he is living along with his family
and the shop in which the respondent is the
tenant is within the same municipality.
7 All. Smt. Prema Devi Vs. Sri Shri Kishna Agrawal
175

18. On being asked an specific query
by the learned counsel for the petitioner
whether any evidence was ever adduced or
led by the petitioner before the trial court
whether
the
said
residential
house
constructed by the respondent can be used
for commercial activity or not, or it was
being
used
by
the
respondent
for
commercial purposes or not, learned
counsel for the petitioner has very fairly
replied that except that averment no
evidence was adduced before the trial court
that the residential building possessed by
the respondent/tenant can be used for
commercial purposes.

19. The judgment relied by the
learned counsel for the petitioner i.e. in the
case of Samar Pal Singh (Supra), wherein
it has been observed by the Court that the
High Court has erred in law by treating
theses two properties as commercial
without there being evidence to that effect.
The property as alleged by the petitioner
i.e. residential house in the name of the
respondent/tenant
is
for
purposes
of
residential as it is admitted by the petitioner
before the trial court and petitioner had not
adduced/lead any evidence that the same
can be used for commercial purposes hence
the judgment relied are not applicable on
the facts of the present case.

20. As per the law settled in the case
of Sunil Kumar Mukherji Vs. Kabiraj
Bindo Madho Bhattachaya and others
reported in (1977) 11 AHC CK 0010 and
in the case of Sheo Nath Prasad Vs. IIIrd
Additional District Judge and others
reported in Allahabad Rent Cases, 1981
Page No. 207, wherein it has been held that
the purpose of the proviso is clear and it is
that in case the petitioner has an alternative
accommodation which can be used for the
purpose for which he occupied the building
under his tenancy, he should not be given
the benefit of sub-section 4 of Section 20 of
the Act, 1972. It is also held by this Court
that proviso to Section 20 (4) would be
attracted only to those cases where the
building under tenancy is in the use of the
tenant for residential purpose. If the
building under tenancy is being used by the
tenant for the commercial or business
purposes, it is obvious that the acquisition
by
the
tenant
of
a
residential
accommodation cannot, in the context of
things, be relevant for determining whether
the tenant ought not be held entitled to
claim the benefit contemplated under
Section 20 (4) of the Act, 1972.

21. The relevant paragraph no. 4 of
the judgment in the case of Sunil Kumar
Mukherji Vs. Kabiraj Bindo Madho
Bhattachaya and others reported in (1977)
11 AHC CK 0010 is quoted herein-below:-

"4. I may here point out that the
explanation to the proviso was inserted by
Section 13 of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
(Amendment) Act, 1976. On a perusal of
the proviso, I am of opinion that it applies
only to a residential building for otherwise
the use of the word "residential" before the
word "building" in the proviso will have no
meaning. If the intention was to make the
proviso applicable to every building the
word "residential" would not have been
used before the word "building". It is an
established rule of interpretation that no
part of an enactment is to be held as
surplusage. In the instant case since
admittedly the premises in question were
not held by the applicant for residential
purposes, his having built a residential
building within the meaning of the proviso
would be of no consequence. The purposes
of the proviso is clear and it is that in case
176 INDIAN LAW REPORTS ALLAHABAD SERIES
the
tenant
has
an
alternative
accommodation which he can use for the
purpose for which he is occupying the
building under his tenancy, he should not
be given the benefit of Sub-section (4)
(emphasis laid). In the instant case,
however, since the premises in question
were occupied by the applicant admittedly
not for residential purpose but for running
a press, namely, for commercial purpose,
his having built a residential building in the
year 1958 would not deprive him of the
benefit which he was entitled to in view of
his
having
made
the
deposit
as
contemplated by Sub-section (4). Another
argument was addressed by counsel for the
applicant, namely, that the proviso applied
only to such buildings which had been
constructed after the coming into force of
the Act did not refer to such buildings
which may have been constructed before its
commencement. The argument is plausible
but I am not expressing any final opinion
on the matter inasmuch as the revision can
be allowed on the ground already stated
above.

22. The relevant paragraph nos. 4 and
5 of the judgment in the case of Sheo Nath
Prasad Vs. IIIrd Additional District Judge
and others reported in Allahabad Rent
Cases, 1981 Page No. 207 are quoted
herein-below:-

4.) In the case of Sunil Kumar
Mukherji (supra) a learned Single Judge
of-this-court had occasion to deal with
precisely the same controversy. After
analysing the provision, and the principle
underlying thereunder, the learned

Judge observed thus:-

"The purposes of the proviso is
clear and it is that in case the tenant has
an alternative accommodation which he
can use for the purpose for which he is
occupying the building under his tenancy,
he should' not be given the benefit of subsection (4). In the instant case, however,
since the premises in question were
occupied by the applicant admittedly not
for residential purpose but for running a
press, namely, for commercial purpose,
his having built a residential building in
the year 1958 would not deprive him of
the benefit which he was entitled to in
view of his having made the deposit as
contemplated
by
sub-section
(4).
(emphasis laid) Another argument was
addressed by counsel for the applicant,
namely, that the proviso applied only to
such buildings which had been constructed
after the coming into force of the Act did
not refer to such buildings which, may have
been constructed before its commencement.
The argument is plausible but I am not
expressing any final opinion on the matter,
inasmuch as, the revision can be allowed
on the ground already stated above."

5. I am in respectful agreement
with the above statement of law. In my
opinion, in the context of the aforesaid
statutory provision and the purpose of the
enactment of which the said provision is a
part, it is obvious that the proviso to
section 20 (4) would be attracted only to
those cases where the building under
tenancy is in the use of the tenant for
residential purpose. If the building under
tenancy is being used by the tenant for the
commercial or business purposes, it is
obvious that the acquisition by the tenant of
a residential accommodation can not in the
context
of
things,
be
relevant
for
determining whether the tenant ought not
to be held, entitled to claim the benefit
contemplated under Section 20 (4). In my
opinion the tenant was clearly entitled to
claim the benefit of Section 20 (4) and the
learned District Judge has rightly held so.
7 All. Mahesh Chandra Saxena & Ors. Vs. State of U.P. & Ors.
177

23. After considering the facts and
circumstances and discussions made above,
now it is not necessary to replicate on the
issue of the notice served by the petitioner
to the respondent. The deposit as demanded
by the petitioner from the respondent prior
to the framing of the issues is admitted by
both the parties i.e. by the learned counsel
for the petitioner and learned counsel for
the respondent hence amount was deposited
on the first date of hearing, prior to the
framing of the issues. The property which
the petitioner has alleged in his reply to the
objection filed by the respondent in a suit,
it is an admitted case that it is a residential
house in which the respondent is residing
with his family and it is also admitted that
no evidence was led before the trial court
whether it can be used for the commercial
purposes or not and nor it has been
mentioned that it is being used by the
respondent for commercial purposes, as
such the petition is devoid of merit and is
liable to be dismissed.

24. The writ petition is dismissed.
----------
(2024) 7 ILRA 177
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.07.2024

BEFORE

THE HON'BLE SAURABH LAVANIA J.

Writ B No. 288 of 2024

Mahesh Chandra Saxena & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Nagendra Kumar Khare, Mohammad Aslam
Khan, Mohan Singh

Counsel for the Respondents:
C.S.C

U.P.
Zamindari
Abolition
and
Land
Reforms Act,1950-Section 20 (b)-Entries
indicated in the documents relied by the
Petitioners are not genuine-in 1356 Fasli , the
land in dispute was recorded as "Imarati Lakdi
ka Jungle" (Timber Trees) in U.P. Land Records
Manual-land not recorded in the name of Raja
Brijraj Bahadur Singh-area of said Gata was
reduced by making correction/cutting in the
Khatauni and U.P. Land records Manual -these
cutting/corrections were made without any
order of competent Revenue Official-benefit of
Sec. 20 (b) of the Act, 1950 would be available
to the Petitioners if the entry was genuine-no
right available to them based upon the sale
deed as their basis is not a valid document-
'Sublato Fundamento Cadit Opus'-'Nemo
dat quod non habet'.

W.P. dismissed. (E-9)

List of Cases cited:

1. Ram Avadh & ors. Vs Ram Das & ors. (2008)
8 SCC 58

2. Jasraj Inder Singh Vs Hemraj Multanchand.
(1977) 2 SCC 155

3. Mohd. Karrar Ali and 2 others Vs the St. of
U.P., AIR 1954 All 753

4. T.N. Godavaraman Thirumulpad etc. Vs
U.O.I.& ors.; AIR 1997 SC 1228

5. Consolidation No. 1268 of 1979 (St. of U.P.
Through The Divisional Forest Officer Vs The
Deputy Director of Consolidation, U.P. & ors.)

6. St. of U.P. Vs Dy. Director of Consolidation &
ors.; AIR 1996 SC 2432

7. Gyanendra Singh & anr. Vs Additional
Commissioner, Agra Division, Agra & ors.; 2003
(95) RD 286

8. Sharad Kumar Dwivedi Vs St. of U.P. & ors.
2022 SCC OnLine All 466