# Thakur Prasad Madhesiya v. The State of U.P. and another

- **Citation:** (2011) 1 ILRA 125
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-05
- **Case number:** Civil Misc. Writ Petition No. 75307 of 2010
- **Bench:** Shashi Kant Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/thakur-prasad-madhesiya-v-the-state-of-u-p-and-another-41803
- **Pages:** 6

## Headnote

Sri Amitabh Agrawal
Sri Saurabh Jain
C.S.C.

U.P.
Urban
Building
Regulation
(of
Letting and Rent) Act 1972-Section 21 CEjectment Application-technical plea by
tenant
regarding
maintainability
of
application-as the tenant inducted by
land
lord
in
un-authorise
mannerrelationship
of
land
lord-tenant
accepted-held-in view of Nutan Kumar
case-application for ejectment of tenantmaintainable.

Held: Para 18

In view of the aforesaid discussions,
with utmost humility, I respectfully
differ with the decision of this Court in
the case of Nand Lal Chaurasia (supra). I
do not seen any reason to uphold the
contention of the petitioner that the
application under Section 21 of the Act is
not
maintainable
against
a
tenant
inducted by the landlord without any
allotment order. I am of the considered
opinion
that
the
application
under
Section
21
of
the
Act
is
fully
maintainable in view of the decisions in
the
cases
of
Nutan
Kumar's
and
Nanakram's (supra).
Case law discussed:
2003 (6) AWC 5288; 2002 (2) ARC 645; AIR
1986 SC 1194; 2008 (3) ARC 772; 2005 (1)
ARC 144; 2006 (1) AWC 349.

## Text

1 All] Thakur Prasad Madhesiya V. The State of U.P. and another
125

37. the above discussion leads me to
no other inference but to dismiss this writ
petition being wholly devoid of merit.

38. In the result, the writ petition is
dismissed with costs which is quantified
to Rs. 20,000/-.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2011

BEFORE
THE HON'BLE SHASHI KANT GUPTA, J.

Civil Misc. Writ Petition No. 75307 of 2010

Thakur Prasad Madhesiya
 ...Petitioner
Versus
The State of U.P. and another

 ...Respondents

Counsel for the Petitioner:
Sri Syed Mahmood

Counsel for the Respondents:
Sri Amitabh Agrawal
Sri Saurabh Jain
C.S.C.

U.P.
Urban
Building
Regulation
(of
Letting and Rent) Act 1972-Section 21 CEjectment Application-technical plea by
tenant
regarding
maintainability
of
application-as the tenant inducted by
land
lord
in
un-authorise
mannerrelationship
of
land
lord-tenant
accepted-held-in view of Nutan Kumar
case-application for ejectment of tenantmaintainable.

Held: Para 18

In view of the aforesaid discussions,
with utmost humility, I respectfully
differ with the decision of this Court in
the case of Nand Lal Chaurasia (supra). I
do not seen any reason to uphold the
contention of the petitioner that the
application under Section 21 of the Act is
not
maintainable
against
a
tenant
inducted by the landlord without any
allotment order. I am of the considered
opinion
that
the
application
under
Section
21
of
the
Act
is
fully
maintainable in view of the decisions in
the
cases
of
Nutan
Kumar's
and
Nanakram's (supra).
Case law discussed:
2003 (6) AWC 5288; 2002 (2) ARC 645; AIR
1986 SC 1194; 2008 (3) ARC 772; 2005 (1)
ARC 144; 2006 (1) AWC 349.

(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. This writ petition is directed against
the judgment and order dated 19.11.2010
passed by the learned Additional District
Judge, Deoria upholding the order dated
8.4.2010 passed by the Prescribed Authority,
Deoria,
District
Deoria
whereby
the
application filed by the landlord under
Section 21 (1)(a) of the UP Act No. 13 of
1972 (in short "the Act") has been allowed.

2. The brief facts of the case are as
follows;

3. An application for release of the
disputed shop was filed by the landlord
under Section 21 of the Act for settling his
son in the business. The application was
allowed. Aggrieved and dissatisfied with the
said order, the petitioner filed an appeal
which was dismissed by the appellate
authority by order dated 19.11.2010 holding
the need of the landlord to be genuine and
bonafide and also held that the comparative
hardship tilts in favour of the landlord.

4. The only point raised by the learned
counsel for the petitioner is that the
application filed under Section 21 of the Act
against the petitioner is not maintainable
since he is not a tenant within the meaning of
the Act but merely an unauthorized occupant
126 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
inducted by the landlord without any
allotment order in contravention of the Act.

5. He further submitted that the
application under Section 21 of the Act can
be filed only against a person having a
allotment order in his favour. The petitioner
cannot be said to be "tenant" as he was
inducted without any allotment order in
contravention of the Act. In support of his
contention, the learned counsel for the
petitioner has relied upon the decision of this
Court in the case of Nand Lal Chaurasia Vs.
VIth Additional District Judge, Pratapgarh
and others 2003 (6) AWC 5288 wherein it
has been held that the landlord leasing out
shops in question to the petitioner (of that
writ petition) under written agreement in
contravention of provisions of Section 11, 13
and 16 (without allotment order), cannot be
said to be 'tenant' within the meaning of the
Act. Hence, the application for release under
Section 21 (1)(a) of the Act is not
maintainable.

6. Per contra, learned counsel for the
respondent No. 2 has submitted that in view
of the decisions of Supreme Court in the
cases of Nutan Kumar and others Vs. IInd
Additional District Judge and others 2002
(2) ARC 645 and Nanakram Vs. Kundalrai,
AIR 1986 SC 1194, the law laid down in the
case of Nand Lal Chaurasia (supra) cannot
be said to be a good law.

7. Heard the learned counsel for the
petitioner and Mr. P. K. Jain, learned Senior
Counsel assisted by learned counsel, Mr.
Saurav Jain appearing on behalf of the
Respondents No. 2.

8. The only question to be adjudicated
upon by this Court as to whether the
application under Section 21 of the Act is
maintainable against the petitioner who was
inducted without an allotment order.

9. A bare perusal of the impugned
judgment would indicate that the court below
has recorded a very categorical finding that
parties are having landlord and tenant
relationship. The relationship of landlordtenant has also been admitted by the
petitioner in paragraph 3 of his written
statement.

10. Apex Court in the case of the
Nutan Kumar and others (supra) while
following the decision of Bench of three
judges in the case of Nanak Chandra
(supra) in paragraphs 7 and 12 has held as
follows;

7. In the case of Nanakram v.
Kundalrai reported in (1986) 3 SCC 83 the
question was whether a lease in violation of
statutory provisions was void. It was held
that in the absence of any mandatory
provision obliging eviction in case of
contravention of the provisions of the Act
the lease would not be void and the parties
would be bound, as between themselves, to
observe the conditions of lease. It was held
that neither of them could assail the lease in
a proceeding between themselves. This
authority was in respect of the Central
Provinces and Berar Letting of Houses and
Rent Control Order, 1949, whereunder also
the landlord was obliged to intimate a
vacancy to the Deputy Commissioner of the
District and the Deputy Commissioner
could allot or direct the landlord to let the
house to any person. The provisions were
more or less identical to the provisions of
the said Act. This authority has directly
dealt
with
the
questions
under
consideration and answered them. The
majority Judgment takes note of this
authority and holds as follows:
1 All] Thakur Prasad Madhesiya V. The State of U.P. and another
127

"With utmost humility and reverence
it is stated that above observations are not
compatible with provisions of Section 10
and 23 of the Contract Act. Otherwise also,
it is most respectfully pointed that the
statement of law contained in the said
observation is, perhaps, in conflict with the
law declared in the decisions of the Hon'ble
Suprme Court in Waman Shriniwas Kini v.
Rati Lal Bhagwan Das & Co., Shrikrishna
Khanna V. Additional District Matgistrate,
Kanpur and others, and Manna Lal Khetan
V. Kedar Nath Khetan."

Thus it is to be seen that the majority
Judgment, with a pretence of humility and
reverence refuse to follow a binding
authority of this Court. It was not open for
the Full Bench to comment that the
authority
was
not
compatible
with
provisions of Sections 10 and 23 of the
Contract Act. The Full Bench also realised
that there are no conflicting authorities.
They therefore say that this authority is
"perhaps in conflict with" the decisions in
Waman
Shriniwas
Kini,
Shrikrishna
Khanna and Manna Lal Khetan. One must
therefore see whether there is any conflict
of decisions. If there is no conflict then
judicial discipline and propriety required
that the majority of the Full

Bench followed the binding authority
of this Court.

12. As Nanakram's case was decided
by three Hon'ble Judges of this Court, it
would also be binding on us. We are
therefore not going into the question of
correctness or otherwise of such a view. We
may however mention that the impugned
Judgment dated 20th May, 1993, of the Full
Bench, is not correct for another reason
also. Section 13 of the said Act specifically
provides that a person who occupies,
without an allotment order in his favour,
shall be deemed to be an unauthorised
occupant of such premises. As he is in
auauthorised occupation he is like a
trespasser. A suit for ejectment of a
trespasser to get back possession from a
trespasser could always be filed. Such a Suit
would not be on the contract/agreement
between the parties and would thus not be
hit by principles of public policy also."

11. Thus, it was held that unless the
statute
specifically
provides,
lease
in
violation to the statutory provision would not
be void and the parties would be bound as
between
themselves
to
observe
the
conditions of lease.

12. Learned counsel for the petitioner
has vehemently argued that although the suit
filed for arrears of rent and ejectment under
Section 20 of the Act is maintainable against
the person occupying the premises without
allotment order but an application under
Section 21 of the Act is not maintainable for
release of the premises. Learned counsel for
the petitioner further submitted that Nutan
Kumar's (supra) case is not applicable since
in the said case the issue was only with
regard to the maintainability of the suit filed
under Section 20 of the Act against the
person occupying the premises without
allotment order and the Apex Court in the
said case never held that the application
under Section 21 of the Act would also be
maintainable against a person inducted by
the landlord without an allotment order.

13. The argument of the learned
counsel for the petitioner is wholly
misconceived and is untenable. The suit for
arrears of rent and ejectment under Section
20 of the Act and an application under
Section 21 of the Act are maintainable only
against the tenant. In both the provisions it is
128 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
necessary that the defendant should be a
tenant. There is no specific provision in the
Act to debar the landlord from filing an
application under Section 21 of the Act for
release of the premises in favour of the
landlord against the tenant occupying the
premises without any allotment order. The
law laid down by the Supreme Court in the
cases of Nutan Kumar (supra) and Nanak
Chand (supra) shall also apply with full
force qua the maintainability of the
application filed under Section 21 against the
tenant occupying the premises without
allotment order.

14. I am also fortified in my opinion by
following decisions of this Court which I
wish to refer briefly;

(1). Munna Lal Vs. IInd Additional
District Judge/Fast Track Court and others
2008 (3) ARC 772,

(2). Munna Lal Agarwal Vs. Rent
Control
and
Eviction
Officer/City
Magistrate reported in 2005 (1) ARC 144,

(3). Pavitra Kumar Garg Vs. Addl.
District Judge reported in 2006 (1) AWC
349.

15. This Court in the case of Munna
Lal Vs. IInd Additional District Judge/Fast
Track Court and others 2008 (3) ARC 772,
interalia, held as follows;

"13. On the parameters set out, the
facts of present case is being dealt with.
Once it has been held by the Hon'ble Apex
Court in the case of Nanakram v.
Kundalraj, 1986 (3) SCC 83, that inter se
parties contract, even if, it is if against the
provisions of law is binding and ejectment
proceedings therein have been held to be
maintainable. Thus as far as Madan Lal
respondent is concerned once he had
entered into an agreement of tenancy which
fact has been admitted by him in his written
statement, then vis-a-vis petitioner-landlord
he cannot come forward and say that he is
unauthorized occupant and as such
proceeding under Section 21(1)(a) of U.P.
Act No. 13 of 1972 is not maintainable. Visa-vis landlord, his status is that of tenant, as
tenant in relation to building means a
person by whom rent is payable. In term of
Section 13, without an order of allotment,
tenant's status under deeming provision is
that of an unauthorized occupant and that
of trespasser and suit for getting back
possession from trespasser can always be
filed. In such a situation as far as landlord
is concerned, it would be case of election of
remedies for him. It is for the landlord to
chose, the forum provided for. Tenant
cannot gain any advantage or benefit out of
the said situation. Inter se parties who have
entered contract of tenancy and have
developed landlord tenant relationship
though contrary to law quo the same,
landlord has got right to enforce his right
on the basis of aforementioned contract
which is inclusive of his right of eviction.
Said contract of tenancy is not binding of
Rent Control and Eviction Officer and even
on prospective allottee,and the machinery
for declaring vacancy can always be set in
motion and on vacancy being declared
landlord has every right to file release
application under Section 16(1)(b) of U.P.
Act No. XIII of 1972. Proceedings under
Section 21(1)(a) of U.P. Act No. 13 of 1972
deals with situation when landlord requires
premises in question for bona fide need of
the landlord vis-a-vis tenant. Madan Lal
had entered into agreement as tenant and
has paid rent also, in this background it
does not lie in the mouth of Madan Lal to
say that by operation of law as his status is
that of unauthorized occupant, as such
proceedings
are
not
competent
and
1 All] Thakur Prasad Madhesiya V. The State of U.P. and another
129
maintainable. This plea is totally in breach
of rights settled in the case of Nanakram
(supra), which still holds the field. This
Court even before reversal of Nutan Kumar
v IInd A.D.J. 1993 (2) ARC 204 (FB), took
the view in the case of Brij Nandan Sahai
Hajela v. IIIrd A.D.J., Shahjahanpur,
1996(1) ARC 165, wherein it was held that
if tenant has not raised this plea when an
application under Section 21 was filed and
accepted himself as tenant, such question
cannot be raised subsequently. Said
Judgment has been followed by this Court,
in the case of Shaliq Ahmad v. A.D.J., 1999
(1) ARC 321, as follows. "The petitioner in
the present case having never raised the
question that he is unauthorized occupant,
it is not now open to him to urge that the
application under Section 21(1)(a) of the
Act is not maintainable. In case petitioner
had alleged that he was in unauthorized
occupation, it was open to landlordrespondent to file application for release
under Section 16(1)(b) of the Act." The
view has again reiterated in the case of
Kailash Chandra Gaur v. Raj Kumar
Sharma, 1999 (1) ARC 333. The issue,
which is sought to be raised by the
petitioner after reversal of the Full Bench
judgment by Hon'ble Apex Court has
already been answered by this Court in the
case of Munna Lal Agarwal v. Rent Control
and
Eviction
Officer/City
Magistrate,
Mathura and others, 2005 (1) ARC 144, as
the agreement of letting is binding in
between the landlord and tenant, hence
landlord is fully entitiled to file release
application under Section 21 of the Act.
Relevant paras 8 and 9 is being extracted
below:

8. In my opinion during the currency
of Full Bench judgment of the Nootan
Kumar landlord could be permitted to file
release application under Section 16 of the
Act on the ground that even though he
himself let out the building to the tenant still
as it was done without allotment order,
hence legally building was vacant. The
reason is that in view of the Full Bench
landlord had been left with no other option.
He could not file release application under
Section 21 of the Act where need of the
landlord might be contested by tenant and
tenant could asserts his hardship. By virtue
of the Full Bench judgment even suit on the
grounds of default etc. as mentioned under
Section 20 (2) of the Act could not be filed if
the landlord had let out the building after
July 1976 without allotment order,

9. However, reversal of the Full Bench
judgment by the Supreme Court has
changed the entire scenario. Now the
agreement is binding in between landlord
and tenant and landlord can file suit for
eviction on the grounds mentioned under
Section 20 (2) of the Act and also release
application under Section 21 of the Act on
the ground of bonafide need. I am,
therefore, of the opinion that if landlord lets
out building on which U.P.R.C. Act is
applicable without allotment then he
himself can not file release application on
the ground of deemed vacancy under
Section 12/16 of the Act. In release
proceedings under Section 16 of the Act
tenant/unauthorized occupant can not
participate and he can not assert that need
of the landlord is not bonafide. As the
agreement of letting is binding in between
landlord and tenant hence landlord is fully
entitled to file release application under
Section 21 of the Act."

16. In Munna Lal Agarwal Vs. Rent
Control
and
Eviction
Officer/City
Magistrate reported in 2005 (1) ARC 144,
also this Court has held that the agreement is
binding between the landlord and tenant if
130 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
building is covered by the Rent Control Act
and in case the tenant has been inducted
without allotment order, the landlord can file
release application under Section 21 of the
Act.

17. In the case of Pavitra Kumar Garg
Vs. Addl. District Judge reported in 2006
(1) AWC 349, this Court has reiterated that
the release application under Section 21
(1)(a) of the Act is maintainable against the
person occupying the premises without any
allotment order.

18. In view of the aforesaid discussions,
with utmost humility, I respectfully differ
with the decision of this Court in the case of
Nand Lal Chaurasia (supra). I do not seen
any reason to uphold the contention of the
petitioner that the application under Section
21 of the Act is not maintainable against a
tenant inducted by the landlord without any
allotment order. I am of the considered
opinion that the application under Section 21
of the Act is fully maintainable in view of the
decisions in the cases of Nutan Kumar's and
Nanakram's (supra).

19. No other point has been pressed.

20. In view of the above, I do not find
any illegality or infirmity in the orders passed
by the court below.

21. In the result, the writ petition is
dismissed.
---------