# The State of U.P. through Collector, Mainpuri and another v. Sri Badan Singh

- **Citation:** (2001) 2 ILRA 288
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-12-03
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-through-collector-mainpuri-and-another-v-sri-badan-singh-39914
- **Pages:** 4

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
288
which notifications etc. issued under an
enactment which is repealed and reenacted. If the principle laid down therein
is extended to rescission and re-enactment
of statutory rules, it cannot be gainsaid
that continuance of the delegation of
power of suspension made under the
rescinded Rules would be subject to; the
qualification that it is not inconsistent
with the provisions of the re-enacted
Rules. Section 24 of the U.P. General
Clauses Act, 1904 clearly provides that
where any enactment is repealed and reenacted by any Uttar Pradesh Act with or
without modification, then, unless it is
otherwise
expressly
provided,
any
appointment, notification, order, scheme
rule, form or bye-law, made or issued
under the repealed shall, 'so far as it is not
inconsistent
with
the
provisions
reenacted' continue in force, and be deemed
to have been made or issued under the
provisions so re-enacted, unless and until
it is superseded by any notification, issued
under the provisions so re-enacted. The
principle laid down in Section 24 of the
U.P. General Clauses Act, 1904 will
equally apply to a case rescission and reenactment of statutory rules. In my
opinion, therefore, the notification relied
on by the learned Standing Counsel
cannot save the impugned order of
suspension which has not been passed by
the 'Appointing Authority' or its delegate.
The view I am taking finds support from
the decision dated 3.12.1999 rendered in
Civil Misc. Writ Petition No. 5915 of
1999 (S/S) (Giri Raj Singh Vs. State of
U.P. and others) by the Lucknow Bench
of this Court.

8. Since the impugned order is liable
to be quashed on the ground that it has
been passed by an authority lacking in
jurisdiction, it is not necessary to go into
the other questions raised by Sri U.N.
Sharma.

In the result, therefore, the petitions
succeed and are allowed. The impugned
order is quashed without prejudice to the
right of the disciplinary authority to pass
such order as it may deem fit and proper
under the provisions of Rule 4 of the U.P.
Government Servants (Discipline and
Appeal) Rules, 1999.

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2All] The State of U.P. through Collector, Mainpuri and another V. Sri Badan Singh
289
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By the Court

1.

The
State
of
U.P.
and
Superintendent of Police, Govt. Railway
Police have filed this revision against the
judgement and order dated 03.07.1985
passed by the 1st Additional District
Judge/J.S.C.C., Mainpuri in S.C.C. Suit
no. 2 of 1980 decreeing the suit of the
opposite party for ejectment and arrears of
rent and damages.

2. The plaintiff/respondent filed
S.C.C. suit no. 2 of 1980 against the State
of
U.P.
applicant
no.
1
and
Superintendent of Police, G.R.P., Agra
applicant no. 2 for ejectment and arrears
of rent and damages on the ground that
the applicants approached him to let out
his house to the State of U.P. for
occupation of staff of G.R.P., Mainpuri as
it was urgently required. The G.R.P.
Mainpuri occupied the disputed premises
on 08.02.1979 on an understanding that
reasonable rent would be paid to the
respondent/plaintiff
having
regard
to
prevailing rent in the vicinity. However,
the rent could not be settled between
parties and the applicant no. 2 continued
paying Rs. 130/- PM as rent subject to the
settlement of the rent subsequently. The
premises in question consisted of 12
rooms, 2 verandas and a big courtyard
with a much more than rent Rs. 312.50 p.
The respondent/plaintiff served a notice
on the applicants demanding rent at the
rate of Rs. 250/- PM and no reply was
received. He moved an application under
Section 9 of the U.P. Act No. 13 of 1972
(herein after called as "the Act") for
determination of standard rent before the
Rent Control and Eviction Officer. The
said application was rejected. He filed
appeal against the said order in the Court
of District Judge Mainpuri. It was allowed
and the case was remanded back. The
Rent Control and Eviction Officer again
rejected
the
application
and
the
respondent/plaintiff again filed appeal.
The appeal was dismissed on the ground
that the provisions of the Act were not
applicable to the premises in question.
Since the provisions of the Act were not
applicable
the
respondent/plaintiff
terminated the tenancy of the applicants
by serving simple notice to quit. He also
claimed Rs. 11875/- as rent and damages.
Despite service of notice the applicants
did not vacate the premises hence the suit.

3. The applicants contested above
suit on the grounds that the rate of rent
was Rs. 130/- PM and not Rs. 312.50 P.
as claimed by plaintiff/respondent. The
assertion of respondent/plaintiff regarding
rent was barred by res judicata. Notice
given under Section 106 of the Transfer
of Property Act and section 80 C.P.C. to
the applicants/defendants were illegal and
that suit was also bad for non joinder of
Inspector General of Police.

4.

On
the
date
of
hearing
plaintiff/respondent
examined
himself.
Thereafter,
learned
counsel
for
the
defendants/applicants moved application
for adjournment. The learned J.S.C.C.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
290
rejected the above application. Thereafter,
learned counsel for the applicants left the
Court and the learned J.S.C.C. proceeded
with the case under Order XVII rule 2
C.P.C. Considering the examination in
chief
of the plaintiff/respondent the
learned J.S.C.C. decreed the suit of the
plaintiff/respondent in toto.

5. The above judgement and decree
has been challenged in this revision.

6. Heard the learned Standing
Counsel appearing on behalf of the
applicants and none appeared from the
side of the respondent and perused the
record.

7. It was contended by the learned
Standing
Counsel
that
the
learned
J.S.C.C. has decreed the suit holding that
rate of rent was Rs. 312.50 P.M. which
the applicants failed to pay after alleged
service of notice of demand while on the
own showing of the plaintiff/respondent,
the rent of the premises in question was
not agreed and he applied twice for
fixation of rent before the Rent Control &
Eviction Officer, but was unsuccessful.
Therefore, the findings of the learned
J.S.C.C. that rent was Rs. 312.50 P. is
without any basis and suffer from
perversity.

8. On the own showing of the
plaintiff/respondent no rent was agreed
between
the
parties
and
defendants/applicants continued to pay
Rs. 130/- PM subject to settlement of rent
subsequently. He applied before the Rent
Control
and
Eviction Officer under
Section 9 of the Act twice for fixation of
rent, but his applications were rejected.
As such on the own showing of
plaintiff/opposite party no rent was fixed
and therefore notice of demand to pay the
rent at the rate of Rs. 312.50 Paisa P.M.
was
invalid.
Moreover,
the
learned
J.S.C.C. has also not recorded any finding
about the rate of rent.

9. The defendants/applicants have
also raised a plea that the notices under
Section 106 of the Transfer of Property
Act and under Section 80 C.P.C. were
invalid. The suit for ejectment could be
decreed only if it was proved that tenancy
of
tenant
was
legally
and
validly
terminated. The learned J.S.C.C. has not
recorded
finding
that
notices
under
Section 106 of the Transfer of Property
Act and Section 80 C.P.C. were valid and
Tenancy of the defendants/applicants was
legally and validly terminated.

10. In this way the finding recorded
by the learned J.S.C.C. suffers from
perversity and are based on no evidence.

11.

Since
no proper finding
regarding rate of rent validity of notice
have been recorded, the suit was not
properly decided. This Court, therefore,
has no option but to allow the revision
and remit the case to the Trial Court for
fresh decision in the light of observation
made above.

12. The revision is, accordingly,
allowed. The order under revision is set
aside and the case is remitted back to the
Court concerned for fresh decision, after
affording opportunity to the parties to
adduce their evidence, in the light of
observations made above.

13. Office is directed to send the
copy of this order to the J.S.C.C.
concerned within a period of one week.
2All] Islam alias Islam Uddin V. State of U.P. and others
291
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By the Court

1. Heard learned counsel for the
petitioner and learned A.G.A.

2. I have gone through both the
judgements one of the Judicial Magistrate
1st, Jaunpur dated 11.03.1998 as well as of
the revisional court dated 19.01.2001. On
merits learned counsel for the petitioner is
not able to assail the judgements of the
two courts. The trial court has only
granted
maintenance
to
the
minor
daughter. So far as the wife was
concerned he was of the opinion that she
is not entitled to maintenance and
therefore
her
application
is
not
entertainable under section 125 Cr.P.C. It
has also been held that she was living
without any valid reason away from the
company of her husband and the applicant
has never declined to maintain her.
Moreover, she is permitted under the
Muslim Women (Protection of Rights)
Act, 1986 to claim maintenance from the
Waqf Board if she is unable to maintain
herself. So far as this girl is concerned the
only challenge thrown by the learned
counsel for the petitioner to the grant of
maintenance
to
her
is
that
this
maintenance should have been granted
from the date of the order and not from
the date of the application. The reason
behind this submission is that the law
does not permit to do so unless special
reasons are recorded by the court below. I
have gone through the entire judgment but
I am unable to find any special reason
having been recorded by the trial court.
Even the judgement in revision does not
contain any such reason. Learned counsel
for the respondent nos. 2 and 3 Sri Ali