# Sri Niwas v. Additional District Judge

- **Citation:** (2003) 2 ILRA 406
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-03-31
- **Case number:** Civil Misc. Writ Petition No. 10566 of 2003
- **Bench:** Janardan Sahai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-niwas-v-additional-district-judge-40099
- **Pages:** 4

## Headnote

U.P. Act No. 13 of 1972 - Section 28 -
read with Transfer of Property Act,
Section 108 (m)- Repair work by the
tenant without permission of land lord
suit for injunction interim injunction
granted by the Trail Court rejected by
the Lower Appellate Court held - proper
-when the tenant claim for expenses of
repair work only then the provisions of
28 shall be attracted-not otherwise.

Held- Para 4

As
already
discussed
above,
the
provisions of Section 28 of U.P. Act No.
13 of 1972 apply in a different situation
where the tenant wants the landlord to
bear the expenses of the repairs. It does
not take away the right of the tenant to
effect the repairs himself. The order of
the appellate court, therefore, does not
suffer from any error, which may call for
any interference under Article 226 of the
Constitution.
Case Law discussed:
1994 ACJ 1140
1999 ACJ 597
AIR 1970 SC 1298

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
406
7. As I have already held that the
order dated 9th May, 1989 was referable to
Or. 17 r. 2 C.P.C. thus, the application for
recall under Or. 9 was maintainable,
therefore,
the
order
rejecting
the
application for recall dated 18th July 1991
as
not
being
maintainable
is
also
erroneous. On similar reasons, the order
of the appellate court dated 1st of May
1993 also cannot be sustained.

8. In view of the discussions
hereinabove, the writ petition succeeds
and is allowed. The order dated 9th May
1989, 18th July 1991 and 31st May 1993
are hereby quashed. The case is remanded
to the trial court for deciding it afresh in
accordance with law after giving full
opportunity to the learned counsel for the
parties. No orders as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.3.2003

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Misc. Writ Petition No. 10566 of 2003

Smt. Saroj Dwivedi

...Petitioner
Versus
Additional District Judge/Special Judge
(S.C. & S.T. Act) & others ...Respondents

Counsel for the Petitioner:
Sri Sanjay Srivastava

Counsel for the Respondents:
A.G.A.

U.P. Act No. 13 of 1972 - Section 28 -
read with Transfer of Property Act,
Section 108 (m)- Repair work by the
tenant without permission of land lord
suit for injunction interim injunction
granted by the Trail Court rejected by
the Lower Appellate Court held - proper
-when the tenant claim for expenses of
repair work only then the provisions of
28 shall be attracted-not otherwise.

Held- Para 4

As
already
discussed
above,
the
provisions of Section 28 of U.P. Act No.
13 of 1972 apply in a different situation
where the tenant wants the landlord to
bear the expenses of the repairs. It does
not take away the right of the tenant to
effect the repairs himself. The order of
the appellate court, therefore, does not
suffer from any error, which may call for
any interference under Article 226 of the
Constitution.
Case Law discussed:
1994 ACJ 1140
1999 ACJ 597
AIR 1970 SC 1298

(Delivered by Hon'ble Janardan Sahai, J.)

1. The petitioner is a land lord of
premises no. 124/326 B, Govind Nagar,
Kanpur. The third respondent is the tenant
of the building. The petitioner filed a suit
for injuction in the court of the Civil
Judge (J.D.), Kanpur Nagar for restraining
the defendant from constructing a roof in
the room in the tenancy of the respondent.
The application for temporary injunction
was also filed by the petitioner. The trial
court
allowed
the
application
and
restrained the tenant from reconstructing
the roof making it clear, however, that the
injunction would not come in the way of
orders being passed under Section 28 U.P.
Act No. 13 of 1972. The appellate court
has allowed the appeal of the tenant third
respondent
and
has
dismissed
the
application for temporary injunction. The
appellate court has relied upon the
provisions of Section 108m of the
Transfer of property Act for holding that
the lessee is bound to keep the tenanted
property in good condition as it was at the
http://www.allahabadhighcourt.nic.in
2 All] Smt. Saroj Dwivedi V. A.D.J./Spl. Judge(S.C. & S.T. Act), Agra and others
407
time when he was put into possession.
Reliance has been placed by the appellate
court upon the decision in 1994 ACJ 1140
Sri Niwas Vs. Additional District Judge
and upon certain other cases.

2. Counsel for the petitioner
submitted that the case of Sri Niwas
(Supra) was not correctly decided as the
provisions of U.P. Act No. 13 of 1972
have in view of Section 38 of that Act
overriding effect upon the provisions of
Transfer of Property Act. It Section 108
(m) of the Transfer of Property Act is
quoted below:-

"(m) the lessee is bound to keep, and
on the termination of the lease to restore,
the property in as good condition as it was
at the time when he was put in possession,
subject only to the changes caused by
reasonable wear and tear or irresistible
force, and to allow the lesser and his
agents, at all reasonable times during the
term, to enter upon the property and
inspect the condition thereof and give or
leave notice of any defect in such
condition' and, when such defect has been
caused by any act or default on the part of
the lessee, his servants or agents, he is
bound to make it good within three
months after such notice has been given
or left."

3. The tenant is bound to keep the
property in as good a condition as it was
at the time when he was put into
possession. The right of the tenant to
maintain the premises can not be denied
in view of the provisions of Section 108
(m) of the Transfer of Property Act.
Section 38 of U.P. Act no. 13 of 1972,
however, gives overriding effect to the
provisions of U.P. Act no. 13 of 1972,.
The contention of the counsel for the
petitioner is that the remedy of the tenant
is to file an application under Section 28
of U.P. Act no. 13 of 1972. The scheme
of the provisions of Sections 26,28 and 38
of U.P. Act no. 13 of 1972 may, therefore,
be examined. Section 26 (2) of U.P. Act
13 of 1972 imposes an obligation upon
the landlord to keep the building under
tenancy wind proof and waterproof and to
carry out periodical white washing and
repairs. Sub-section (3) of Section 26
provides subject to contract to the
contrary in writing that no tenant shall
demolish any improvement effected by
him in the building. Section 28 provides
the procedure to be followed by the tenant
for effecting repairs. In case of minor
repairs, the tenant may give notice to the
landlord to carry out the repairs and if the
landlord fails to comply with the notice
the tenant may under sub-section (3) of
Section 28 himself carry out repairs at a
cost not exceeding 2 months' rent in a
year and deduct the amount from the rent
and to furnish the account of the
expenditure to the landlord. In case of
major repairs, the cost of which is likely
to exceed the amount of two months rent,
the tenant may if the landlord fails to
comply with the notice apply to the
Prescribed Authority under section 28 (4)
and the Prescribed Authority may under
Section 28 subsection (5) require the
landlord to carry out the requisite major
repairs and on his failure to do so permit
the petitioner to carry out those repairs at
a cost which shall not be more that 2
years rent. Where the tenant carries out
major repairs, the is required to furnish an
account of expenses to the prescribed
authority which shall certify the amount
recoverable by the tenant and such
amount can be adjusted against the rent in
monthly installment no exceeding 25% of
one month's rent.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
408
4. The provisions of U.P. Act 13 of
1972
referred
to
above
are
not
inconsistent in the sense that they can
coexist with the provisions of Section 108
(m) of the Transfer of Property Act.
Under the provisions of Section 108 (m),
it is the duty of the tenant to keep the
premises in as good a condition, as they
were when they were let out. The
provisions of the Act no. 13 of 1072 make
it obligatory upon the landlord to keep the
premises with proof and waterproof and
to enforce this obligation, the tenant has
been given a right to apply under Section
28 to the Prescribed Authority and to
claim adjustment of the expenses against
the rent in the manner and to the extent
provided for under that Section. The
provisions of Sections 26 and 28 of U.P.
Act 13 of 1972 are for the benefit of the
tenant and they create an obligation upon
the landlord to keep the premises wind
proof and waterproof and to effect
periodical repairs. These provisions do
not take away the right of the tenant
himself to effect the repairs if he does not
want to claim adjustment of the expenses
against the rent. The question about
adjustment of the expenses against the
rent is not involved in this case. This writ
petition arises out of a suit filed by the
landlord restraining the tenant from
reconstructing the roof. In the case of
Sudhakar Shukla & Others Vs. Rajesh
Kumar Agarwal, it has been held that a
suit for injuction filed by the tenant
restraining the landlord defendant from
interfering with the tenants right of
repairing the tiles and repairing the rooms
in his tenancy and to keep it wind proof
and water proof has been held to be
maintainable and not prohibited by the
provisions of Section 38 of U.P. Act no.
13 of 1972. It has been held in that case
that a tenant can make use of Section 28
of Act No. 13 of 1972 in case where he
wishes to have some repairs done at the
landlord's expense and the Sections 26 or
28 do not prohibit the institution of a suit
in the regular civil court if the relief
claimed is for some repairs done by the
tenant himself without imposing any
financial liability on the landlord. In the
present case it is the landlord who has
filed the suit for injunction restraining the
tenant form reconstructing the roof of the
tenanted premises. Such an injunction
sought by the landlord would interfere
with the tenants right to effect the repairs
recognized by Section 108 (m) of the
Transfer of Property Act and therefore
can not be granted. It has been held in
1999 (4) ACJ 597, Reshma Devi Vs. Civil
Judge
(S.D.)
Prescribed
Authority,
Azamgarh & Others that repairs will
include laying down of the roof or
constructing the wall. The scheme of
Section 108 (m) of the Transfer of
Property Act and Sections 26 and 28 of
U.P. Act 13 of 1972 is that if the tenant
wants to effect the repairs, he is at liberty
to do so in view of the provisions of
Section 108 (m) of the Transfer of
Property Act, but if he wants the landlord
to bear the expenses, he has to apply
under Section 28 of U.P. Act No. 13 of
1972 . There is as such no conflict
between the two provisions and Section
28 of U.P. Act No. 13 of 1972 does not
come in the way of the tenant effecting
repairs himself without resorting to the
provisions of Section 28 of U.P. Act No.
13 of 1972. The decision in the case of
State of West Bengal Vs. Indian Iron and
Steel Company Ltd., AIR 1970 Supreme
Court 1298 does not help the petitioner.
The proposition therein laid down that
where finality has been given to orders of
special Tribunals the civil courts, it
jurisdiction must be held to be excluded if
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2 All] Shiv Poojan Prasad V. District Magistrate, Chandauli and others
409
there is adequate remedy to do what the
civil court would normally do in a suit can
not be doubted. That was a case under the
Bengal Cess Act and the question about
determination of annual net profits was
involved there. As already discussed
above, the provisions of Section 28 of
U.P. Act No. 13 of 1972 apply in a
different situation where the tenant wants
the landlord to bear the expenses of the
repairs. It does not take away the right of
the tenant to effect the repairs himself.
The order of the appellate court, therefore,
does not suffer from any error, which may
call for any interference under Article 226
of the Constitution.

Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2003

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

Civil Misc. Writ Petition No. 55497 of 2002

Shiv Poojan Prasad

...Petitioner
Versus
District
Magistrate,
Chandauli.
and
others

 ...Respondents

Counsel for the Petitioner:
Sri R.N. Shukla

Counsel for the Respondents:
Sri D.K.S. Rathor
Sri S.N. Singh
S.C.

Constitution of India- Article 226 Reauction
of
fisheries
rights
without
cancellation of patta duly executed in
favour of the petitioner- the decision of
administrative or quasi judicial body
affecting vested rights or interest of
individual could not be altered without
affording opportunity of hearing when
there is an obligation to adopt the
judicial approach and to comply with the
basic requirements of justice, principles
of Audi Alteram partem have to be
observed.

Held- Para 4

It is well settled that (decision of
administrative or quasi judicial body
affecting vested rights or interest of
individual could not be altered without
affording opportunity of hearing. When
there is an obligation to adopt the
judicial approach and comply with the
basic requirements of justice, principles
of Audi Alteram Partem have to be
observed.)

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

1. Present petition has its genesis in
the order dated 26.11.2002 passed by the
District Magistrate Chandauli arrayed as
respondent no. 1 and the consequential
order dated 29.11.2002 thereby reopening
the auction of pond/Tank for fisheries
rights, comprising in Plot no. 609/2, 619,
687 admeasuring 2.56 acres situated in
village Baburi Pergana Majhwar Tahsil
and District Chandauli.

2. Facts shorn of unnecessary details
are that the pond/tank in question was, to
begin with, put to auction in accordance
with law on 9.10.2002 and the fisheries
rights came to be settled in favour of the
petitioner who being the highest bidder
i.e. Rs.70,000/- Subsequently, Patta came
to be executed in favour of the petitioner
on 30.10.2002 by the competent authority.
It
transpires
from
the
record
that
respondent no.4 made an application
seeking cancellation of the Patta before
the District Magistrate Chandauli on the
ground that manipulations were contrived
in the proceeding of auctioning the