# Smt. Ram Kunwar & others v. IInd Additional District Judge, Banda and others

- **Citation:** (2004) 2 ILRA 528
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-09
- **Case number:** Civil Misc. Writ Petition No. 5767 of 1988
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ram-kunwar-others-v-iind-additional-district-judge-banda-and-others-40413
- **Pages:** 5

## Headnote

Constitution of India- Article 226- U.P.
Urban Buildings (Regulation of letting,
Rent and Eviction) Act, 1972- S. 20(2) C-
suit for eviction on ground of material
alteration- Finding by both courts below
that construction of a kiosk in front of
building has caused material alteration
and has dismissed its value- Findings of
material alteration by courts below are
finding
of
fact-
same
cannot
be
interfered in writ petition- Hence liable
for eviction.

Both the courts below have held that the
construction of a kiosk in front of the
building has caused material alteration
and has diminished its value and has also
disfigured it. The finding of the material
alteration given by the courts below are
findings of fact, which cannot be interfered
in
the
writ
petition.
Therefore,
the
petitioners are also liable to be evicted
from the premises in question. Para 15
Case law discussed:
1978ARC 103
1978 AWC 552
1997 (2) ARC 459

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
528

56. Compassionate appointment, in
the State of U. P. in spite of Apex Court
holding otherwise, become a job-security
by
succession
inheritance
in
the
contingency
of
death
of
a
Government/Corporation employee.

57. Justice Ratnavel Pandian J, in
the case of Indra Sawhney Versus Union
of India, AIR 1993 SC 477 observed:-

" No one can be permitted to invoke
the constitution either as sword for an
office or as a shield for anticipatory
defence, in the sense that no one under
the guise of interpreting the Constitution
can causes irreversible injustice and
irredeemable inequalities to any section
of the people or can protect those
unethically
claiming
unquestionable
dynastic monopoly over the constitutional
benefits".

Justice H. R. Khanna in the Book
'Judging the Judges' by Gyan Publishing
House- New Delhi-1999 Edition-in the
chapter "The Role of the Judiciary"
page
28-commented-".......Judicial
decisions have to be backed by well
reasoned arguments. You cannot say- no
judge of the highest court can say, well
look here I have given the decision that no
constitutional law of land can challenge.
It is not out of place to mention that it is
also now settled that what was 'legal' in
the past, may by passage of time, in the
context of changed circumstances in
future become 'illegal'.

59. To sum up-(i) petitioner has
failed on the facts of the present case, as
discussed above, to prove 'distress' which
could warrant compassionate appointment
to mitigate hardship immediately to the
family of deceased employee in question;
and, (ii) in the light of the discussion
made above, Dying in Harness Rules do
not stand the fest of valid classification
and, therefore, the Rules contemplating
compassionate appointments are hit by
Article 14 and 16, Constitution of India.
(iii) Respondents are directed to activate
Compassionate Fund Rule and The U.P.
Benevolent Fund Scheme 1997, and to
make it real, purposive and effective so as
to achieve solemn object for which they
are framed (iv) A copy of this judgement
shall be sent to Chief Secretary for
bringing the matter to the concerned and
the State Government is mandated to take
appropriate action in the light of the
above.

CONCLUSIONS

60. Writ Petition, consequently lacks
merit and hence dismissed subject to the
directions given above.
No order as to costs. Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 9.4.2004

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 5767 of 1988

Smt. Ram Kunwar & others ...Petitioners
Versus
IInd Additional District Judge, Banda
and others

 ...Respondents

Counsel for the Petitioners:
Sri R.R.K. Trivedi
Sri S.K. Shukla,
Sri R.K. Pandey
Sri Ramji Pandey

Counsel for the Respondents:
Sri J.B. Singh
S.C.
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2 All] Smt. Ram Kunwar and others V. IInd Additional District Judge, Banda and others
529
Constitution of India- Article 226- U.P.
Urban Buildings (Regulation of letting,
Rent and Eviction) Act, 1972- S. 20(2) C-
suit for eviction on ground of material
alteration- Finding by both courts below
that construction of a kiosk in front of
building has caused material alteration
and has dismissed its value- Findings of
material alteration by courts below are
finding
of
fact-
same
cannot
be
interfered in writ petition- Hence liable
for eviction.

Both the courts below have held that the
construction of a kiosk in front of the
building has caused material alteration
and has diminished its value and has also
disfigured it. The finding of the material
alteration given by the courts below are
findings of fact, which cannot be interfered
in
the
writ
petition.
Therefore,
the
petitioners are also liable to be evicted
from the premises in question. Para 15
Case law discussed:
1978ARC 103
1978 AWC 552
1997 (2) ARC 459

(Delivered by Hon'ble Tarun Agarwala, J.)

1. By means of this petition, the
petitioners have challenged the order
dated 1.7.1987 passed by the Judge Small
Causes Court, Banda, and the revisional
order dated 23.3.1988 whereby the suit of
the landlady for eviction of the petitioners
on the ground of subletting and material
alteration was decreed.

2. The facts of the case are that the
landlady, respondent no.3 filed a suit for
ejectment of the petitioners alleging that
the petitioner no.1 was the tenant and that
he was in arrears of rent w.e.f. 30.12.1981
and that he did not pay the rent inspite of
repeated demands. It was also alleged that
the tenancy of the petitioner No.1 was for
residential
purposes,
but
the
accommodation was being used for
business purposes. It was also alleged that
the petitioner no.1 had sublet the premises
in question to petitioner no.2, who was
using the premises for his business
purposes in the name and style of "Rai
Light House". The landlady further
submitted that the petitioner no.1 had
constructed a kiosk in front of the house
and thereby, caused material alteration,
which not only diminished the value of
the building, but also disfigured it.

3. The petitioners contested the suit
and filed a joint written statement denying
all the allegations made by the landlady.
The petitioners submitted that the tenancy
was both for residential as well as for
business purposes and that no material
alteration in the building was ever caused
by them. It was also submitted that the
petitioner No.2 is the uterine brother of
petitioner No.1 and that he had been
living with petitioner No.1 since birth and
that the business in the name of Rai Light
House was being done by the petitioner
No.1 with the help of his sons along with
the petitioner No.2 and, therefore, there
was no question of any subletting. The
petitioners further submitted that there
was no default in the payment of the rent.
The rent was being sent by Money Order,
which was refused by the landlady.

4. The Judge Small Causes Court
decreed the suit for ejectment on the
ground of subletting and on the ground of
material alteration. The Judge Small
Causes Court held that the petitioner No.1
was not a defaulter in the payment of rent
and that the premises was not given
exclusively
for
residential
purposes.
However, the Judge Small Cause Court
held that the notice given by the landlady
terminating the tenancy was valid and that
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530
the defendant no.2 had sub-let the
premises to the petitioner no.2. The trial
court further held that the construction of
the kiosk caused material alteration and
had disfigured and diminished the value
of the building.

5. Aggrieved by the order of
ejectment passed by the Judge Small
Causes Court, the petitioners filed a
revision, which was also dismissed.

6. The question that arises for
consideration in the present writ petition
is whether the petitioner no.1 had sub-let
the premises to the petitioner no.2 and
whether the construction of the kiosk had
caused material alteration in the building
or not?

7. Heard Sri S.K. Shukla, the
learned counsel for the petitioners and Sri
J.B. Singh, the learned counsel for the
landlady-respondent No.3.

8. The learned counsel for the
petitioners submitted that there was no
question of subletting the premises
inasmuch as the petitioner No.2 was the
uterine brother of petitioner No.1 and that
the petitioner No.1 was doing the business
in the name of Rai Light House along
with the help of his sons and petitioner
No.2. The learned counsel for the
petitioners submitted that the construction
of a kiosk in front of the building did not
cause any material alteration nor it
diminished the value of the building nor
disfigured it.

9. The contention raised by the
learned counsel for the petitioners is
wholly devoid of any merit and is liable to
be rejected. It may be stated that Section
20 of the Uttar Pradesh Urban Buildings
(Regulation
Of
Letting,
Rent
And
Eviction) Act, 1972 (hereinafter referred
to as the 'Act') imposes a restriction on
the rights of the landlord to institute a suit
for eviction of the tenant except on certain
grounds as provided therein. Section
20(2)(c) and Section 20(2)(e) of the Act
reads as under:-

"20(2)(c)
that the tenant has without
the permission in writing of the
landlord made or permitted to be
made any such construction or
structural
alteration
in
the
building as is likely to diminish its
value or utility or to disfigure it;

(e) that the tenant has sub-let, in
contravention of the provisions of
Section 25, or as the case may be,
of the old Act the whole or any
part of the building;"

Thus, a tenant can be evicted on the
ground of raising construction without
seeking previous permission in writing
from the landlord and which has caused
material alteration in the building or
where the tenant has sublet the building in
contravention of the provisions of Section
25 of the Act. Section 25 of the Act reads
as under:-
"25. Prohibition of sub-letting.- (1)
No tenant shall sub-let the whole of the
building under his tenancy.

(2) The tenant may with the permission
in writing of the landlord and of the
District Magistrate, sub-let a part of the
building.

Explanation.- For the purposes of
this section,-
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2 All] Smt. Ram Kunwar and others V. IInd Additional District Judge, Banda and others
531
(i) where the tenant ceases, within
the meaning of clause (b) of sub-section
(1) or sub-section (2) of Section 12, to
occupy the building or any part thereof he
shall be deemed to have sub- let that
building or part;

(ii) lodging a person in a hotel or a
lodging house shall not amount to subletting."

Section 12(1)(b) of the Act reads as
under:-

"12. Deemed vacancy of building in
certain cases-(1) A landlord or tenant of a
building shall be deemed to have ceased
to occupy the building or a part thereof if-

(2) he has allowed it to be occupied by
any person who is not a member of his
family,"

10. From the aforesaid provisions of
the Act, it is clear that where a tenant of
the building has allowed it to be occupied
by any person, who is not a member of his
family, the tenant ceases to occupy the
building or any part thereof and the tenant
shall be deemed to have sub-let that
building.

11. From the evidence led by the
parties, is it clear that the petitioner no.1
was the tenant of the landlady and
petitioner no.2 was the uterine brother of
petitioner no.1. It has also come on record
that the petitioner no.1 was not residing in
the premises in dispute and was working
in Jhansi and that the petitioner no.2 was
doing the business in the name and style
of Rai Light House from the premises in
question as a sole proprietor.

12. The question that is to be
considered is whether the petitioner no.2
being a brother of petitioner no.1 is a
member of the family as contemplated
under Section 3 (g) of the Act, which
reads as under:
"3(g)
"family"
in
relation to a landlord or tenant of
a building, means, his or her-
(i) spouse,
(ii) male lineal descendants,
(iii) such parents grant-parents and any
unmarried or widowed or divorced or
judicially separated daughter or daughter
of a male lineal descendant, as may have
been normally residing with him or her,

and includes, in relation to a landlord, any
female having a legal right of residence in
that building."

13. Admittedly the tenancy was in
the name of petitioner no.1. It is not a
case that the tenancy was inherited by the
petitioners. Therefore, uterine brother
does not come within the meaning of
word "family" as defined under Section 3
(g) of the Act. In Smt. Ram Sarni Devi
Vs.Smt. Raisa Begum and others, 1978
ARC 103, it has been held that the brother
of the tenant is not a member of the
family. Similar view was expressed in
1978 AWC 552, Mahendra Sen Jain and
another V. Ratanlal and another and in
1997 (2) ARC 459 Shahid Ali and others
Vs.
Judge
Small
Causes
Court,
Moradabad.

14. In view of the aforesaid, even
though the petitioner no.2 is a uterine
brother of petitioner No1, he could not
come under the parameters of a "member
of the family" as defined under Section 3
(g) of the Act. It is also an admitted
position that the petitioner no.2 was doing
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
532
the business in the capacity of a
proprietor. It has also come on record that
the petitioner no.1 was not residing in the
premises in dispute and was working in
Jhansi. Thus it is a clear case that the
petitioner No.1 has sublet the premises to
petitioner no.2 in violation of the
provision of Section 25 of the Act and
was therefore the petitioners were liable
for eviction under Section 20(e) of the
Act.

15. Both the courts below have held
that the construction of a kiosk in front of
the building has caused material alteration
and has diminished its value and has also
disfigured it. The finding of the material
alteration given by the courts below are
findings of fact, which cannot be
interfered in the writ petition. Therefore,
the petitioners are also liable to be evicted
from the premises in question.

16. In view of the aforesaid, there is
no merit in the writ petition and is
dismissed with cost. Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 6.4.2004

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition 13974/2004

Dhanesh Kumar Sharma
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri P.K. Bhardwaj

Counsel for the Respondents:
S.C.

U.P. Intermediate Education Act, 1921Regulation
2
of
Chapter
II-
U.P.
Secondary Education Services Selection
Board
Act,
1982
(As
amended
by
Amendment Act, 2001)-Ss. 16 and 18Senior most teacher allowed to work as
officiating principal- His right cannot be
defeated on ground that he was unable
to carry on functions for some period on
account of illness- Second Senior most
teacher took over charge but resigned on
g round of domestic circumstances-Third
Senior most teacher declined to accept
office as he was going to retire shortlyBy this time the senior most teacher
recovered from illness and requested to
be appointed as officiating principal-his
right, held, cannot be defeated only on
ground that in past, expressed his
inability-Neither any agreement in writ
petition- nor any material on record to
show unsuitability or disqualification for
any act of misconduct- Held, can not be
denied
from
working
as
officiating
Principal.

Where a senior most teacher was found
suitable and was allowed to work as
officiating principal, his right cannot be
defeated on the ground that he was
allowed and was unable to carry on
functions as officiating principal for
some period of time. In the present case,
respondent no. 5 gave in writing that he
is unable to officiate as principal on
account of illness. The second senior
most teacher took over the charge but
resigned on the ground of domestic
circumstances and third senior most
teacher declined to accept the office as
he was going to shortly retire. By this
time respondent no. 5 recovered from
illness and requested to be appointed as
officiating principal. His right cannot be
defeated only on the ground that he was
ill at the time when he expressed his
inability to continue on account of ill
health. Once he has recovered and has
requested to accept the responsibility,
his right cannot be defeated on the
ground
that
he
had
in
the
past,
expressed his inability to continue on the
ground of illness. There is no averment