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

- **Citation:** (2006) 1 ILRA 472
- **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-and-others-40866
- **Pages:** 6

## Headnote

Sri S.R. Misra
Sri H.R. Misra
Sri P.K. Misra
S.C.

U.P. Urban Buildings (Regulation of
Letting Rent & Eviction) Act 1972Section 20 (4)-Arrear of rent-for more
than
4
months-inspite
of
Notice
demanding rent-instead of depositing
the same-tenant started raising technical
plea about validity of Notice itselfdeposit under Section 30-can not be held
proper-unless
denial
by
land
lord
established-held-benefit of Section 20
(4) can not be given-finding recorded by
the Courts 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
1 All] Sripal Singh V. State of U.P. and others
473
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
1991(1) ARC-268

## Text

472 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
inquiry ..." the Member Secretary cannot
pass an order of suspension.

5. With the greatest of respect, we
have a little difficulty in understanding
what can be meant by the phrase
"decision by the District Committee
contemplating....inquiry". A decision to
initiate an inquiry is taken only after the
contemplation is over. No Committee
ever ''decides' merely to contemplate an
inquiry, it simply contemplates it in
appropriate circumstances.

6. The above statements are made
with the greatest of respect to the Full
Bench. In the manner we respectfully
understand the decision of the Full Bench,
it appears to us that if it can be shown by
the writ petitioner that in no view of the
facts could it be said that the inquiry or
even contemplation of an inquiry was in
the mind of the District Committee or
could have been in the mind of the
District Committee, then and in that
event, a decision to suspend taken alone
by the Member Secretary cannot stand by
itself.

7. The facts have to be very strong
in favour of the writ petitioner under
suspension, if he can allege and proof that
even possibility of contemplation of an
inquiry against him by the District
Committee cannot be even thought or
imagined to exist in the facts and
circumstances of a particular case. If he
can show that, then he can also
successfully
challenge
an
order
of
suspension passed by the MemberSecretary. The facts of this case are not so
strong in favour of the writ petitionerappellant. As such the order of suspension
was passed with jurisdiction.

The appeal is dismissed.
---------
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, and
others

...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 Buildings (Regulation of
Letting Rent & Eviction) Act 1972Section 20 (4)-Arrear of rent-for more
than
4
months-inspite
of
Notice
demanding rent-instead of depositing
the same-tenant started raising technical
plea about validity of Notice itselfdeposit under Section 30-can not be held
proper-unless
denial
by
land
lord
established-held-benefit of Section 20
(4) can not be given-finding recorded by
the Courts 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
1 All] Sripal Singh V. State of U.P. and others
473
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
1991(1) ARC-268

(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
474 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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.

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.
1 All] Sushil Kumar Srivastava V. IVth A.D.J., Gorakhpur and others
475
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
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
476 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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
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
1 All] Sushil Kumar Srivastava V. IVth A.D.J., Gorakhpur and others
477
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
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 23.12.2005

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE DEVENDRA PRATAP SINGH, J.

Civil Misc. Writ Petition No. 12776 Of 1999

Surya Deo Mishra

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.B. Singh
Sri M.D. Mishra
Sri R.C. Tripathi

Counsel for the Respondents:
Sri Sudhir Agrawal, Addl. A.G.
Sri S.P. Kesarwani, S.C.

(A) Constitution of India, Art. 226Payment of Salary-working on basis of
interim order-even after the dismissal of
writ petition-held-entitled for salary for
the period of working under interim
order.

Held: para 24 (1)

The petitioner is entitled to the salary for
the period that he has worked under the
interim order of the Court in view of the
law laid down in Shobh Nath ''s case
which has now been overruled. We have
therefore, modified the order passed in
the first petition.