# Sushil Kumar Srivastava v. IVth Addl.District Judge, Gorakhpur

- **Citation:** (2005) 2 ILRA 776
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-12
- **Case number:** Civil Misc. Writ Petition No. 17300 of 1984
- **Bench:** Vikram Nath
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-srivastava-v-ivth-addl-district-judge-gorakhpur-40531
- **Pages:** 6

## Headnote

Sri S.R. Misra
Sri H.R. Misra
Sri P.K. Misra, S.C.
U.P.
Urban
Building
(Regulation
of
letting Rent & Eviction) Act 1972-Section
20 (4)- Arrear of rent-for more than 4
months-inspite
of
notice
demanding
rent-instead of depositing the sameTenant started raising technical plea
about validity of notice itself-deposit
under Section 30-can not be held properunless denial by land lord establishedheld-benefit of Section 20 (4) can not be
given-finding recorded by the Court
below
neither
controverted
nor
challenged-ejectment held proper.

Held: Para 9 & 14

Since the suit filed in the present case
was based exclusively and solely on
question of arrears of rent under Section
20(2)(a) of the Act, a notice to vacate
where a tenant was in arrears of more
than four months of rent and had failed
to deposit within one month from the
date of service of notice, would be
sufficient. Relying upon the judgment of
the Supreme Court referred to above and
Division bench of 1974 in Abdul Jalil
case, I hold that the notice given in the
present case was valid notice. The
finding of both the Courts below on this
question is therefore correct and does
not warrant any interference.

In the present case there is categorical
finding recorded by both the Courts
below that the tenant never tendered
the rent after receipt of notice and there
was no denial/refusal by the landlord to
accept the rent after notice was given.
This finding is not challenged by the
petitioner nor is there any averment in
the petition that rent was tendered after
receipt
of
notice
and
the
landlord
refused
to
accept
the
same
and
therefore, the deposit under section
30(1) of the Act continued. I am,
therefore of the view that petitioner was
not entitled to the benefit of deposit
made by the petitioner under section 30
of the Act In the circumstances the
Courts below rightly disallowed the
benefit of the deposits made under
section 30(1) of the Act by the tenant
Case law discussed:
AIR 1988 A.P.-193
AIR 1971 Alld.-302
AIR 1964 Alld.-260
1980 ARC-1
2004 (2) ARC-118
AIR 1974 Alld-402
AIR 1984 SC-143
1985 (2) ARC-331
1997 (1) ARC-139
2004 ARC (1) 580
2 All] Sushil Kumar Srivastava V. The IV A.D.J., Gorakhpur and others 777

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2005
776
appropriate time and forum as and when
occasion would arise.

70. Thus in view of foregoing
discussions and observations made herein
above, the impugned award passed by
Labour Court in Adjudication Case No.
37 of 2002 on 19.01.2004 published on
24.08.2004 is hereby quashed and the writ
petition succeeds and stands allowed.

71. There shall be no order as to
costs.

 Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2005

BEFORE
THE HON'BLE VIKRAM NATH, J.

Civil Misc. Writ Petition No. 17300 of 1984

Sushil Kumar Srivastava
...Petitioner
Versus
IVth Addl.District Judge, Gorakhpur

 ...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava

Counsel for the Respondents:
Sri S.R. Misra
Sri H.R. Misra
Sri P.K. Misra, S.C.
U.P.
Urban
Building
(Regulation
of
letting Rent & Eviction) Act 1972-Section
20 (4)- Arrear of rent-for more than 4
months-inspite
of
notice
demanding
rent-instead of depositing the sameTenant started raising technical plea
about validity of notice itself-deposit
under Section 30-can not be held properunless denial by land lord establishedheld-benefit of Section 20 (4) can not be
given-finding recorded by the Court
below
neither
controverted
nor
challenged-ejectment held proper.

Held: Para 9 & 14

Since the suit filed in the present case
was based exclusively and solely on
question of arrears of rent under Section
20(2)(a) of the Act, a notice to vacate
where a tenant was in arrears of more
than four months of rent and had failed
to deposit within one month from the
date of service of notice, would be
sufficient. Relying upon the judgment of
the Supreme Court referred to above and
Division bench of 1974 in Abdul Jalil
case, I hold that the notice given in the
present case was valid notice. The
finding of both the Courts below on this
question is therefore correct and does
not warrant any interference.

In the present case there is categorical
finding recorded by both the Courts
below that the tenant never tendered
the rent after receipt of notice and there
was no denial/refusal by the landlord to
accept the rent after notice was given.
This finding is not challenged by the
petitioner nor is there any averment in
the petition that rent was tendered after
receipt
of
notice
and
the
landlord
refused
to
accept
the
same
and
therefore, the deposit under section
30(1) of the Act continued. I am,
therefore of the view that petitioner was
not entitled to the benefit of deposit
made by the petitioner under section 30
of the Act In the circumstances the
Courts below rightly disallowed the
benefit of the deposits made under
section 30(1) of the Act by the tenant
Case law discussed:
AIR 1988 A.P.-193
AIR 1971 Alld.-302
AIR 1964 Alld.-260
1980 ARC-1
2004 (2) ARC-118
AIR 1974 Alld-402
AIR 1984 SC-143
1985 (2) ARC-331
1997 (1) ARC-139
2004 ARC (1) 580
2 All] Sushil Kumar Srivastava V. The IV A.D.J., Gorakhpur and others 777
(Delivered by Hon'ble Vikram Nath J.)

1. This writ petition by the tenant is
directed against the judgment and orders
dated 17.09.1984 and 30.09.1982 passed
by IV Addl. District Judge, Gorakhpur
and the Judge Small Causes Court,
Gorakhpur whereby the suit of the
respondent
no.3
Devendra
Bahadur
Srivastava for recovery of arrears of rent
and ejectment of the petitioners has been
decreed and the revision of the tenant
petitioner against the same has been
dismissed.

2. The dispute relates to residential
portion in the tenancy of the petitioners
situate at 414 Ismailpur, Gorakhpur which
is owned by the respondent no.3. The
petitioner was a tenant at monthly rent of
Rs.50/- in the upper northeast portion of
the said building (hereinafter referred to
as the premises in dispute). The petitioner
committed default in payment of rent
from March 1978 despite request by the
respondent no.3. As the arrears were not
paid, the respondent no.3 gave notice
dated 22.09.1979 demanding the arrears
and to vacate the premises within 30 days.
The petitioner failed to satisfy the demand
and replied denying the contents of the
notice. The respondent no.3 thereafter
filed JSCC Suit No. 367 of 1979 in the
Court of Judge Small Causes, Court,
Gorakhpur. The petitioner contested the
suit and raised the following issues:
Firstly that the notice under section 106 of
Transfer of Property Act was invalid,
secondly there was no dues against the
petitioner and he was not in arrears;
thirdly the landlord by conduct had
waived the notice which was the basis for
filing the suit, as such there being no
subsequent notice the present suit was
liable to be dismissed and lastly that he
had made the deposits under section 30 of
the U.P. Urban Buildings (Regulation of
Letting, Rent And Eviction) Act, 1972 (in
short referred to as the Act) and was
entitled to benefit of Section 20(4) of the
Act having deposited the arrears before
the first date of hearing. Both the parties
led
evidence
in
support
of
their
contentions. The trial court vide judgment
dated 30.4.1982 while decreeing the suit
recorded the following findings: Firstly
that the notice was a valid notice,
secondly the liability to pay the water tax
and the house tax was on the petitioner;
thirdly there was default of more than
four months rent on the part of the
petitioner; fourthly the petitioner was not
entitled to the deposit made under section
30 of the Act and as such no protection
under section 20 (4) of the Act could be
given to the tenant.

3. Aggrieved by the same the
petitioner filed revision under section 25
of Provincial Small Causes Court Act
which was registered as Civil Revision
No. 266 of 1982 Sushil Kumar Srivastava
Vs. Devendra Bahadur Srivastava. The
revisional Court vide judgment dated
17.09.1984 agreed with all the findings of
the trial court except that it allowed one
months benefit with regard to the arrears
of rent to the petitioner tenant and
modified the decree to the extent that the
liability to pay the rent would begin from
April 1978 and not from March 1978 as
claimed in the plaint and as decreed by
the trial court. Aggrieved by the aforesaid
two judgments the tenant has filed the
present writ petition.

4. I have heard Sri Arvind
Srivastava,
learned
counsel
for
the
petitioner and Sri P.K. Misra learned
counsel for the respondent no.3 landlord.
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
778

5. The first contention of learned
counsel for the petitioner is that the notice
dated 22.09.1979 (Annexure- 4 to the
petition) was in praesenti and therefore
invalid. According to the counsel for the
petitioner, the language used in the notice
was that the tenancy was terminated from
the date of issue of notice, which is not
legally permissible, and the tenancy could
be terminated only after a period of 30
days from the service of the notice,
therefore, it was invalid. For proper
adjudication of the issue para 4 of the
notice is quoted hereunder:

"That my client does not want to
keep you as tenant and hereby terminates
your tenancy through this notice and you
are hereby requested to pay Rs.1395.40 to
my client and vacate the premises after
residing there for 30 days, failing which a
suit may be filed against you and in that
case you will be liable for the whole
expenses of the case also."

Great stress has been given by the
learned counsel for the petitioner on the
word "hereby terminates your tenancy
through this notice"

6. In support of his contention, the
counsel for the petitioner has relied upon
the following three decisions: Firstly, AIR
1988 Andhra Pradesh page 193 Y.
Krishna Murthy Vs. A. Subba Rao. In the
said case the language used in the notice
was similar to that of the present notice
and Andhra Pradesh High Court held that
the tenancy could be determined only
after the expiry of 15 days and any
language contrary to it would render the
notice invalid. The next case relied upon
by the counsel for the petitioner is AIR
1971 Allahabad page 302, Hakim Jiaul
Islam Vs. Mohd.Rafi. In the said case the
language used in the notice was the
termination of tenancy with effect from
today. The said notice and the present
notice being differently worded the said
judgment cannot help the petitioner. The
third case relied upon by the petitioner is
AIR 1964 Allahabad page 260 (Full
Bench decision) in the case of Gorakhlal
Vs.
Maha
Prasad
Narain
Singh.
According to this decision it was held that
the termination of tenancy in law and to
vacate the premises would be different
things. Relying upon these cases, the
counsel for the petitioner has sought to
further explain that Section 20 of the Act
has to be read in consonance with the
provisions of the Transfer of Property
Act. It is not a dispute that the notice of
demand and the notice to vacate can be a
combined notice. The question is what are
the essential of such a combined notice
and when such notice could be held to be
valid or invalid based upon the language
of the notice.

7.

Learned
counsel
for
the
respondent has relied upon Constitution
Bench of Supreme Court in the case of V.
Dhanpal Chettier Vs. Yashodai Ammal
reported in 1980 A.R.C. page 1 wherein
the Supreme Court taking a broader and
liberal view with regard to interpretation
of notice has held that notice cannot be
thrown out on technicalities and further
where the provisions of Rent Act come
into play, it is not necessary to give a
notice to quit under section 106 of the
Transfer of Property Act. The Apex Court
held that what is required is only the
termination of tenancy under the Rent Act
would be sufficient. Further, reliance has
been placed upon 2004(2) ARC page 118
Shanti Devi Nigam Vs. Madan Lal
Gupta in which the Supreme Court has
2 All] Sushil Kumar Srivastava V. The IV A.D.J., Gorakhpur and others 779
held that under the provision of Section
20(2)(a) of the Act a notice demanding
arrears of rent and seeking eviction was
sufficient and there was no requirement of
a notice under section 106 of Transfer of
Property Act.

8. In another case decided by a
Division Bench of this Court in Abdul
Jalil versus Haji Abdul Jalil reported in
AIR 1974 All. 402 after giving illustration
of different language used in the notice
has held a similar notice as in the present
case to be a valid notice.

9. Since the suit filed in the present
case was based exclusively and solely on
question of arrears of rent under Section
20(2)(a) of the Act, a notice to vacate
where a tenant was in arrears of more than
four months of rent and had failed to
deposit within one month from the date of
service of notice, would be sufficient.
Relying upon the judgment of the
Supreme Court referred to above and
Division bench of 1974 in Abdul Jalil
case, I hold that the notice given in the
present case was valid notice. The finding
of both the Courts below on this question
is therefore correct and does not warrant
any interference.
10. The next contention of learned
counsel for the petitioner is that the
respondent no.3 having waived the notice
dated 22.09.1979 and there being no fresh
notice, demanding rent up to 30.11.1979,
the proceedings were vitiated in law. The
counsel for the petitioner has pointed out
that in the notice dated 22.09.1979 the
rent from March 1978 up to 31.08.1979
was claimed. It is not disputed that this
notice was served upon the petitioner on
26.09.1979. In the plaint the rent was
claimed for the period from March 1978
up to 30.11.1979 and therefore, the
petitioner alleges that the respondent no.3
had waived the previous notice, in as
much as the respondent no.3 treated
/accepted the petitioner to be tenant up to
30.11.1979. According to the petitioner,
the notice having been served on
26.09.1979, and period of one month
expired on 25.10.1979; therefore, the
claim of rent up to 30.11.1979 is not
inconformity with the notice issued to the
petitioner, as such the suit must fail. In
support of his contention, the petitioner
has relied upon the judgment of the
Supreme Court in the case of Satish
Chand Vs. Goverdhan Das reported in
AIR 1984 S.C. page 143 which was
dealing with the case of the notice under
section 106 Transfer of Property Act and
where the facts were totally different
which cannot be compared with the facts
of the present case which required only a
notice as contemplated under section
20(2)(a) of the Act. The said judgment of
the Supreme Court cannot be of any help
to the petitioner and more so when the
Supreme Court has already held in case of
Shanti Devi Nigam (Supra) that where
Rent Act has come into play there was no
requirement of notice under section 106
of the Transfer of Property Act.

11. The next contention of the
learned counsel for the petitioner is that
the Courts below illegally and wrongly
disallowed the benefit of the deposit made
under section 30 of the Act. It is urged
that in case the deposits under section
30(1) of the Act were taken into
consideration there would be no default
and the petitioner would have been
entitled to protection from eviction under
section 20(4) of the Act. The petitioner
has deposited rent under section 30(1) of
the Act for the period August 1979 till
June 1980. It is not in dispute that notice
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
780
demanding rent was given in September
1979, which is also accepted by the
petitioner. There was no justification for
depositing rent under section 30 of the
Act once the landlord had shown
willingness to accept the rent by giving
notice. This is what is clearly intended by
section 30(1) of the Act. For sake of
convenience the section 30(1) of the Act
is quoted below.

30. Deposit of rent in court in
certain circumstances. (1) If any person
claiming to be a tenant of a building
tenders any amount as rent in respect of
the building to its alleged landlord and the
alleged landlord refuses to accept the
same then the former may deposit such
amount in the prescribed manner and
continue to deposit any rent which he
alleges to be due for any subsequent
period in respect of such building until the
landlord in the meantime signifies by
notice in writing to the tenant his
willingness to accept it.

12. Learned counsel for the
petitioner has relied upon 1985(2) ARC
331 Shankar Lal Sharma V. Ram Adhar
and others, 1997(1) ARC 139 Mahendra
Nath Tandon v. VI A.D.J. Kanpur Nagar
and others and 2004(1) ARC 580 Babu
Ram and others v. Special Judge/
Additional District Judge, Bijnor for the
said proposition. In all these cases the
landlord had either refused to accept rent
when it was tendered by the tenant after
receipt of notice or had with drawn the
amount deposited under section 30 of the
Act and therefore, the deposit made under
section 30 (1) of the Act after expiry of
notice was held to be a valid deposit.
They are of no help to the petitioner.

13. On the other hand learned
counsel for the respondent relying upon
the contents of section 30 (1) of the Act
contended that once notice for demand
was given which clearly indicates the
willingness of the landlord to accept the
arrears of rent there is no justification for
continuing to deposit rent under section
30 (1) of the Act. Any such deposit would
be illegal and no benefit can accrue to the
petitioner tenant. Reliance is placed upon
a decision of this Court in the case of
Ayodhya Nath Dubey Versus XIII the
Addl.
District
&
Sessions
Judge,
Kanpur Nagar reported in 1991(1)
ARC 268 wherein this Court held that
once willingness is expressed by the
landlord to accept the rent and the tenant
despite the same continues to deposit in
Court under section 30 (1) of the Act, the
tenant would not be entitled to claim
benefit of such deposit.

14. In the present case there is
categorical finding recorded by both the
Courts below that the tenant never
tendered the rent after receipt of notice
and there was no denial/refusal by the
landlord to accept the rent after notice
was given. This finding is not challenged
by the petitioner nor is there any averment
in the petition that rent was tendered after
receipt of notice and the landlord refused
to accept the same and therefore, the
deposit under section 30(1) of the Act
continued. I am, therefore of the view that
petitioner was not entitled to the benefit
of deposit made by the petitioner under
section 30 of the Act In the circumstances
the Courts below rightly disallowed the
benefit of the deposits made under section
30(1) of the Act by the tenant

15. The last contention of the
petitioner is that electricity charges could
2 All] Sushil Kumar Srivastava V. The IV A.D.J., Gorakhpur and others 781
not have been included while determining
the validity and sufficiency of the deposit
made under section 20(4) of the Act and
even if considered the deficit would be
very small and could be ignored in order
to advance substantial justice and the
petitioner would be entitled to benefit of
the protection from eviction under section
20 (4) of the Act. This contention loses its
significance in view of the finding
recorded with regard to benefit of the
deposit under section 30(1) of the Act.

16. In the result the writ petition
fails
and
is
accordingly
dismissed,
however there will be no order as to costs.
Petition Dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2005

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 16587 of 2004

Shri Kant Arya

...Petitioner
Versus
M/s New Victoria Mills, Kanpur and
others

 ...Respondents

Counsel for the Petitioner:
Sri P.K. Tripathi
Counsel for the Respondents:
Sri J.N. Tiwari
Sri Gopal Misra

Constitution of India, Art. 226-Voluntary
Retirement Scheme-Petitioner appliedprovided entire dues is given modified
voluntary retirement Scheme on 12.7.0203.03.03
petitioner
applied
for
cancellation of the condition under offer
as the Respondents failed to clear the
dues-continued
working-held-entitled
for every consequential benefits-if new
Victoria Mills Kanpur closed and such
scheme
for
absorption
of
others
employees is in existence-petitioner also
may be considered.

Held: Para 7

Having heard learned counsel for the
parties and considering the facts and
circumstances of this case, in my view
this writ petition deserves to be allowed
and the impugned order dated 14.7.2003
passed by the respondent M/s New
Victoria Mills, Kanpur is liable to be
quashed only in so far as it relates to the
case of the petitioner, and that the
petitioner would be entitled to all
consequential benefits.
Case law discussed:
2002 AIR SCW 1165
2003 AIR SCW 313
AIR 1999 SC-1571
2003 FLR I
2003 PRSCW 2989
2004 SCC ( ) 428

(Delivered by Hon'ble Vineet Saran, J.)

1. The petitioner was initially
appointed in the year 1985 as Supervisor
Maintenance on probation in Atherton
Mills of the National Textile Corporation.
Thereafter vide order dated 27.7.1991 he
was transferred to New Victoria Mills of
the National Textile Corporation at
Kanpur. He joined at New Victoria Mills,
Kanpur on 29.7.1991. In the year 2001
some dispute arose with regard to his
provident fund account. According to the
petitioner, his employer (respondents) had
wrongly got an account opened in the
name of Shri Kant Misra instead of the
petitioner's actual name which was Shri
Kant Arya. The provident fund amount of
the petitioner was thus deposited in a
wrong name.