JUDGMENT Hon’ble Sunil Ambwani, J.—Heard Smt. Subhash Rathi, learned Standing Counsel for the State of U.P and the Trade Tax Officer, Gorakhpur-the petitioners. Shri Rahul Sripat appears for the respondent-landlord. 2. The State of U.P. through the Collector, Gorakhpur and the Trade Tax Officer, Bungalow No. 5, Park Road, Civil Lines, Gorakhpur, have prayed for setting aside the judgment and order dated 1.12.2005 passed by the Judge, Small Causes Court, Gorakhpur, by which he has decreed the S.C.C. Suit No. 33 of 2000 between Kailash Jaiswal v. State of U.P. and another, for ejectment and arrears of rent @ Rs. 7,500/- per month upto the date when the possession is delivered to the plaintiff and the order dated 29.3.2006 passed by the Additional District & Sessions Judge, Fast Track Court No. 1, Gorakhpur, dismissing Small Causes Court Revision No. 1 of 2006 between State of U.P. v. Kailash Jaiswal. 3. The plaintiff-respondent filed a suit for ejectment stating that he is the owner and landlord of Bungalow No. 5, Park Road, Civil Lines, Gorakhpur. The land was held under a lease, which was converted into free hold, by the State Government by a registered sale deed dated 24.9.1999 after completing all the formalities and after accepting Rs. 19,12,900/- as sale consideration. The Trade Tax Officer-defendant No. 2 was occupying the premises since before 18.5.1983 as a tenant @ Rs. 167/- per month. The plaintiff has acquired the right of the owner and landlord of the premises, on which defendant No. 2 has become his tenant. A notice of purchase of property was given to defendant No. 2. The rent was due for several years. The defendant No. 2 did not pay the rent. The suit property is not regulated by the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. A notice dated 24.3.2000, demanding the rent and terminating the tenancy was given along with Section 80 of the Code of Civil Procedure. The notice was received by the defendant No. 2 on 25.3.2000. The defendants did not pay the rent or vacate the premises. It was alleged that the suit property can be let out @ Rs. 10,000/- per month. 4. The defendants denied the plaint allegations and the ownership of the plaintiff over the land. The defendants admitted that the lease hold land was converted into free hold. The defendants did not pay the rent or vacate the premises. It was alleged that the suit property can be let out @ Rs. 10,000/- per month. 4. The defendants denied the plaint allegations and the ownership of the plaintiff over the land. The defendants admitted that the lease hold land was converted into free hold. However, it was stated that the document was executed by playing fraud and that the District Magistrate has cancelled the document. Thereafter a Government Order was issued on 27.11.2001 on which the State Government has filed a suit for cancellation of the free hold document in the Court of Civil Judge (Junior Division) Gorakhpur. The premises are in occupation of the Sales Tax Office. The building is regulated by U.P. Act No. 13 of 1972 and that the suit is barred by Section 80 of Code of Civil Procedure and Section 106 of Transfer of Property Act. The arrears of rent were also denied. 5. The trial Court held that the subject building was constructed on Nazul plot No. 125. It was allotted by District Magistrate, Gorakhpur to the Sales Tax Office on 28.6.1949 for office-cum-residence purposes. The possession of the land was taken back by the Nagar Nigam on 4.5.1991 and was handed over to the Sales Tax Department. The defendants however admitted that a patta of nazul land was executed on 7.3.1963 in favour of Shri Anant Prasad after it was surrendered by the erstwhile lessee. The parties admitted that the land was nazul land, the ownership of which vested in the State. It was leased out to Shri Anant Prasad on 7.3.1963 and that the building was allotted by the District Magistrate to the Sales Tax Office. It was admitted to both the parties to the suit that the document converting the land into free hold was executed by the District Magistrate, Gorakhpur in favour of the plaintiff on 24.9.1999. The State of U.P. however, has filed a suit for cancellation of the sale deed. The land, measuring 30,000 sqr fts with lease hold rights, was converted into free hold. The trial Court found the plaintiff to be the owner and the landlord of the land and building. The State of U.P. however, has filed a suit for cancellation of the sale deed. The land, measuring 30,000 sqr fts with lease hold rights, was converted into free hold. The trial Court found the plaintiff to be the owner and the landlord of the land and building. The document of sale does not provide for any condition that the building will not be transferred along with the land and that under Section 8 of the Transfer of Property Act, the ownership of the building also vests in the plaintiff. The trial Court further found that the U.P. Act No. 13 of 1972 is not applicable to the building on the ground that the State was a tenant of the building before amendment of the Act and insertion of Section 2 (1)(a) by U.P. Act No. 17 of 1985. It relied upon the judgment in State of U.P. v. Mallick Zareed Khalid, AIR 1988 SC 132 , in holding that the public buildings, defined under Section 3 (o) of the Act, were exempt from the purview of the Act, only after its amendment. The agreement of rate of rent was not established. The allotment order was not filed by any party on record to prove the rate of rent. The trial Court found that the rent was not due from the defendant. On issue Nos. 5 and 6, the trial Court held that the notice, terminating the tenancy under Section 106 of the Transfer of Property Act, was received by the tenant. It was a composite notice under Section 106 of the Transfer of Property Act, and Section 80 of CPC, giving 30 day’s time to the tenant to vacate the premises. The notice was proved and was served upon the tenant. With regard to the rate of rent, the trial Court found that there was no agreement nor there was any stipulation in the allotment order fixing the rent. The building, however, situated in Civil Lines, Gorakhpur and constructed over 30,000 sqr mtrs, could easily fetch Rs. 10,000/- per month. Taking into account the age of the building, the rate of rent @ Rs. 7,500/- was found to be just and proper. 6. Both the State of U.P. as well as Shri Kailash Jaiswal-the plaintiff filed Small Causes Revisions, numbered as Small Cause Revision 1 of 2006 and Small Cause Revision No. 2 of 2006 respectively. 10,000/- per month. Taking into account the age of the building, the rate of rent @ Rs. 7,500/- was found to be just and proper. 6. Both the State of U.P. as well as Shri Kailash Jaiswal-the plaintiff filed Small Causes Revisions, numbered as Small Cause Revision 1 of 2006 and Small Cause Revision No. 2 of 2006 respectively. The revisional Court upheld the findings recorded by the trial Court except the findings on issue No. 1, relating to the rate of rent. The revisional Court found that in the plaint the rate of rent was stated to be Rs. 167/- per month and not Rs. 187/- per month. This rate of rent was not denied in the written statement. The defendants stated that the plaintiff did not give any intimation about the change of ownership and the arrears of rent. The Sales Tax Department is in occupation of the building since 1949, and claims to be the owner of the property. The rate of rent was not specifically denied. The plaintiff claimed seven month’s rent from 24.9.1999 to 24.4.2000 and Rs. 550/- as costs of the notice. The lease of nazul land was executed by the then District Magistrate in favour of Shri Anant Prasad on 7.3.1963. On that date the building was let out by an allotment order of the District Magistrate dated 28.6.1949. The free hold deed was executed on 24.9.1999. The Sales Tax Department had filed a suit for cancellation of lease deed. The plaintiff became the owner and landlord on the execution of the free hold deed dated 24.9.1999 and that until the deed is cancelled by the Court of competent jurisdiction, the plaintiff will be the owner and landlord of the building with the land. 7. The revisional Court further held that Shri Anant Prasad was lessee and the landlord under lease deed dated 7.3.1963 in respect of the building allotted to the Sales Tax Department on 28.6.1949. The Sales Tax Department continued to be tenant upto 4.5.1991, when it is alleged that the Nagar Nigam handed over the possession from the lessee to the Sales Tax Department. Even if the stand of the defendant regarding handing over possession is accepted, the provisions of U.P. Act No. 13 of 1972 will not be applicable as the Sales Tax Department was admittedly the tenant w.e.f. 18.5.1983. Even if the stand of the defendant regarding handing over possession is accepted, the provisions of U.P. Act No. 13 of 1972 will not be applicable as the Sales Tax Department was admittedly the tenant w.e.f. 18.5.1983. Section 2 (a) of the Act was amended by U.P. Act No. 17 of 1985 in respect of the buildings of which the State Government was the landlord as defined under Section 3 (o) of the Act. The amendments were not made with retrospective effect and thus the provisions of U.P. Act No. 13 of 1972 will not apply to the building. The revisional Court also relied upon judgment in State of U.P. v. Mallick Zareed Khalid, AIR 1998 SC 132 in which it was held that where the land is taken on lease by the State Government, it would fall squarely within the definition of the ‘public building’ and is exempted from the application of the Act by reason of Section 2 (1) of the Act, amended in 1976. Consequently in such case the landlord’s remedy to recover possession would lie under the general law and would have to be enforced by a suit for recovery of possession. Prior to the amendment in 1976 only those buildings of which the State was owner or landlord, were excluded from the Act. The legislature clearly intended a departure. The amendment omitted the crucial word not present in the earlier legislation, which had the effect of restricting the exclusion of the tenancy created by the Government either as owner or as landlord. It was held that full effect must be given to the new definition of Section 3 (o) of the Act and to the conscious departure in re-framing the exclusion. The revisional Court upheld the findings of the service of notice under Section 106 of Transfer of Property Act by which the tenancy was terminated and 30 day’s time was given to the Sales Tax Department to vacate the building. The registered notice was sent to the correct address. It was not refused by the tenant. The tenant did not establish that the notice was not served upon it. 8. On the questions of decree of rent, the revisional Court did not find any error in the findings that the building on 30000 sqr of land in Civil Lines Gorakhpur, could easily be let out at Rs. It was not refused by the tenant. The tenant did not establish that the notice was not served upon it. 8. On the questions of decree of rent, the revisional Court did not find any error in the findings that the building on 30000 sqr of land in Civil Lines Gorakhpur, could easily be let out at Rs. 10,000/- per month and that taking into account the age of the building, the determination of rent of Rs. 7,500/- per month as mesne profit was not excessive. 9. The Court issued notices on 5.7.2006 and while fixing on 24.7.2006 stayed the eviction of the petitioner till the next date of listing. On 5.10.2006, this Court prima facie found that the ownership of the land was in doubt and that the involvement of the State Government officers is prima facie established on record. The contention of learned Counsel for the petitioner, that Smt. Poornima wife of late Shri Anant Prasad, had no authority to nominate the respondent for getting free hold right of the land in dispute and that the State Government had filed a suit 259 of 2002 for cancellation of the free hold rights. The Court thereafter found that the ownership of the land and title of the land for the purposes of acceptance of rent are two different things and that unless the title is decided, it could not be said as to who is the owner of the land. The respondent may be conveniently called as landlord for the purposes of acceptance of the rent. The petitioners have not paid rent to the landlord since 1978 and thereafter to Smt. Poornima Prasad till 1999. The area of the building is about 2800 sqr fts with land appurtenant of about 30333 sqr fts. As an interim measure it was provided that petitioners will pay half of the amount of Rs. 10,000/- which appears to be reasonable rent in the posh area of Gorakhpur city. The balance of amount of Rs. 5,000/- will be deposited in the interest earning fixed deposit account. The arrears of rent, which was admittedly not deposited, shall be deposited at the rate of Rs. 3,000/- from 1984 to 1999 in a separate interest bearing account within two months. In case of two defaults, the petitioners will be evicted on the application of the respondent-landlord, if necessary, with the help of police force. The arrears of rent, which was admittedly not deposited, shall be deposited at the rate of Rs. 3,000/- from 1984 to 1999 in a separate interest bearing account within two months. In case of two defaults, the petitioners will be evicted on the application of the respondent-landlord, if necessary, with the help of police force. While admitting the petition and listing in third week of February 2007, for reporting compliance, the Court directed enquiry to be conducted against seven officers of nazul department, nine officers of Nyay Vibhag and twenty more officers named in the supplementary affidavit filed by the petitioners. The enquiry report was to be submitted within six months. 10. The State Government filed a Special Appeal No. (66) of 2007 against the order, in which following orders were made on 2.4.2007 : “This appeal under Chapter VIII Rule 5 of the Rules of the Court is preferred by the State Government against the order of the Hon’ble Single Judge dated 5.10.2006 in Civil Misc. Writ Petition No. 31339 of 2006 preferred by the State of U.P against the order dated 1.12.2005 and 29.3.2006 of the trial Court in Revision Nos. 1 of 2006 and 3 of 2006. At the outset, Sri S.M.A. Kazmi, learned Advocate General states that the appellant is aggrieved only by a portion of the order whereby the Hon’ble Single Judge has recorded a finding that involvement of the officers of the State Government is positive from record and therefore, direction has been issued to hold departmental enquiry at the first instance by the concerned department into the conduct of the officers mentioned in the order. It is vehemently contended that there was neither any appropriate pleading showing their involvement nor there was any material on record on the basis of which there could have been a conclusive finding showing their involvement in the alleged fraud. It has also been contended that at no point of time any notice was issued to those officers and, therefore, the order being passed behind their back, cannot sustain. It has also been contended that at no point of time any notice was issued to those officers and, therefore, the order being passed behind their back, cannot sustain. Reliance has been placed on a judgment of the Hon’ble Apex Court in the case of U.P. Gram Panchayat Adhikari Sangh and others v. Daya Ram Saroj and others, (2007) 2 SCC 138 , and it is submitted that in the absence of any pleading in the writ petition, the Hon’ble Single Judge erred in directing for holding of enquiry. It is also submitted that the finding in the order that the involvement of the officers is positive from the record is bound to prejudice the departmental proceeding. Having considered the submissions and looking to the facts of the case, we are of the view that the direction for holding departmental proceeding requires to be modified. We accordingly modify the order of the Hon’ble Single Judge to the extent that the State Government at the first instance shall make a fact finding enquiry in respect of the allegations of fraud committed in getting the plot in question free hold. In the event, any evidence comes in that enquiry showing prima facie involvement of any officer, it will be open to the State Government to take such legal action as permissible under law or to proceed against him in accordance with law. We, accordingly, dispose of this appeal with the above modification in the order of the Hon’ble Single Judge. We further provide that the aforesaid fact finding/preliminary enquiry shall be concluded by the State Government within six months from the date of issuance of a certified copy of this order. The State Government shall, thereafter proceed in accordance with law against the officers/officials found involved on the basis of evidence or material found during such fact finding enquiry. With the above modification, the appeal stands disposed of. Sd/- S. Rafat Alam, J. Dt. 2.4.2007 Sd/- Sudhir Agarwal, J.” 11. Smt. Subhash Rathi, learned Standing Counsel, appearing for the State of U.P., would submit that nazul plot No. 125, Bungalow-5, Park Road, Gorakhpur, measuring 32000 sqr yards, was leased out to Smt. Daulat Kumari for construction of Bungalow/office of Government employees on 18.8.1909. On 28.6.1949, the Sale Tax Department was allotted the office in the bungalow under U.P. Act No. 3 of 1947. On 28.6.1949, the Sale Tax Department was allotted the office in the bungalow under U.P. Act No. 3 of 1947. Smt. Daulat Kumari surrendered 50,000 sqr fts of the land to the State Government to be leased to Shri Anant Prasad on certain terms and conditions. Anant Prasad entered into a rent deed on 1.12.1976 with U.P. State Agro Industries Corporation without permission of the Government and against the terms and conditions of the lease deed. The Collector cancelled the lease deed for violation of the terms of the lease on 22.4.1978. The objections were filed by Anant Prasad on 21.5.1978. The Sales Tax Department requested for allotment of the building and land to the Collector on 6.1.1979. The Government filed Suit No. 98 of 1988 against Poornima Prasad, wife of Late Anant Prasad and others under Sections 4 and 7 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972, for ejectment and payment of damages after serving and publishing notices in the newspapers. The Prescribed Authority passed the order of ejectment on 4.8.1989. The U.P. State Agro Industries Corporation got a stay of order dated 4.8.1989 from the District Judge in Appeal No. 514 of 1991. The appeal was dismissed on 23.4.1991. Smt. Poornima Prasad did not comply with the order of the Prescribed Authority/City Magistrate, on which an order of ejectment was passed authorising the Mukhya Nagar Adhikari, Gorakhpur to take possession. He took possession on 9.9.1991 as per order dated 23.4.1991 and handed over 29970 sqr fts of the nazul land to the Sales Tax Department in presence of the witnesses. He wrote a letter dated 17.5.1991 to District Magistrate, seeking permission of the Government to transfer the land in question to the Sales Tax Department. Smt. Poornima Prasad filed a Writ Petition No. 16930 of 1991, against the order in which an interim order was passed on 22.8.1991. She thereafter filed an application for renewal of lease on 18.8.1992 and 15.10.1992. The District Magistrate informed the State Government that she has been evicted and that by interim order her dispossession has been stayed in Writ Petition No. 19630 of 1991. The Commissioner directed the District Magistrate on 30.8.1993 not to give free hold rights to anyone except the Sales Tax Department. Smt. Poornima Devi filed an application along with treasury challan of Rs. 100/- on 9.5.1997 for free hold rights. The Commissioner directed the District Magistrate on 30.8.1993 not to give free hold rights to anyone except the Sales Tax Department. Smt. Poornima Devi filed an application along with treasury challan of Rs. 100/- on 9.5.1997 for free hold rights. She then filed Writ Petition No. 17687 of 1996 on 23.5.1996 seeking free hold rights in her favour. Smt. Poornima Devi nominated Shri Kailash Prasad Jaiswal on 13.8.1997 for 30000 sqr mtrs of land wherein the office of the Sales Tax Department was situated. A free hold policy was introduced by the State Government in December, 1998. Taking benefit of this policy, Shri Kailash Prasad Jaiswal, suppressing the material facts got sale deed executed in his favour as Writ Petition No. 19630 of 1991 was dismissed on merits on 13.12.1999. The free hold rights therefore could not be granted to Shri Kailash Prasad Jaiswal on her nomination. The District Magistrate informed the State Government on 25.2.2000 that this development on which Shri Kailash Prasad Jaiswal filed Suit No. 33 of 2000 (giving rise to this writ petition) for ejectment and damages against the State of U.P. and the Sales Tax Department. 12. The Sales Tax Department requested permission from the State Government to institute a suit against Shri Kailash Prasad Jaiswal for cancellation of the sale deed. The State Government granted permission on 27.11.2001 on which the Suit No. 259 of 2002 was instituted for cancellation of the sale deed executed in favour of Shri Kailash Prasad Jaiswal. During the pendency of this suit, Kailash Prasad Jaiswal transferred the property on 16.6.2003 in favour of Shri Vinod Kumar Jalan. The State Government issued a policy on 14.10.2004, to allot nazul land on which the Government officers were situated to such department, free of costs. The Judge, Small Causes Court did not take into consideration these 9 developments. The ownership was thus under cloud. 13. Smt. Subhash Rathi submits that Smt. Poornima Devi, wife of Shri Anant Prasad played fraud in concealing the facts of her ejectment and has transferred the land by making nomination to Shri Kailash Prasad Jaiswal. The free hold rights granted to Shri Kailash Prasad Jaiswal by the free hold deed will not confer any right upon him. He is not the owner and landlord. A suit for cancellation of the free hold deed is still pending. The free hold rights granted to Shri Kailash Prasad Jaiswal by the free hold deed will not confer any right upon him. He is not the owner and landlord. A suit for cancellation of the free hold deed is still pending. She submits that the Rent Control Act was applicable to the building and that the service of notice was not proved. The Courts below have thus committed gross error of jurisdiction in decreeing the suit. 14. Shri Rahul Sripat, appearing for the respondent-landlord, submits that the lease of the plot No. 125, situated in Arazi Chawani, Civil Lines, Gorakhpur city (nazul land), was granted under the Government Grants Act in the year 1908 to one Smt. Bansraji Devi, wife of Shri Bhagwati Prasad for construction of building for use of Government offices and residence. Smt. Bansraji Devi could not raise constructions. On her death, her legal heirs (daughter) Smt. Daulati Devi was asked by the Collector to raise constructions. She also failed to do so. Shri Parmeshwari Dayal Mukhtar and Shri Suraj Bali Mukhtar, the landlord amicably agreed to raise constructions provided Smt. Daulati Devi surrendered her lease hold rights for the entire land. She surrendered her lease hold rights on 3.10.1947 by a deed of surrender. Shri Parmeshwari Dayal Mukhtar and Shri Suraj Bali Mukhtar constructed a bungalow on a part of surrendered land, marked in green colour in the map enclosed with the lease deed dated 7.3.1963. When the construction of the building was complete in 1949, it was allotted to the Sales Tax Office vide allotment order dated 28.6.1949 under Section 7 (2) of U.P. Act No. Ill of 1949. Shri Parmeshwari Dayal Mukhtar and Shri Anant Prasad son of late Shri Suraj Bali Mukhtar became the landlords of the Sales Tax Department since after the date of allotment. A partition took place between Shri Parmeshwari Dayal Mukhtar and Shri Anant Prasad on which two different lease deeds were executed by the Collector, Gorakhpur on 7.3.1963. In this case, we are concerned with the lease deed executed in favour of Shri Anant Prasad. The Sales Tax Office started paying rent only to Shri Anant Prasad. The lease deed covered with the area of 55080 sqr fts out of which the portion under tenancy of the Sales Tax Department was 30000 sqr fts. In this case, we are concerned with the lease deed executed in favour of Shri Anant Prasad. The Sales Tax Office started paying rent only to Shri Anant Prasad. The lease deed covered with the area of 55080 sqr fts out of which the portion under tenancy of the Sales Tax Department was 30000 sqr fts. On 1.12.1976, Shri Anant Prasad entered into an agreement to lease the remaining area under his occupation to U.P. State Agro Industrial Corporation Ltd. a Government company and State Government’s undertakings on 1.9.1977. The Corporation wrote to the Commissioner, Gorakhpur Division, Gorakhpur informing him that some temporary constructions are required to be raised on the land under the tenancy of the Corporation. The Commissioner granted necessary approval. The Corporation constructed temporary shed in 1978. The Collector, Gorakhpur served a notice on 6.3.1978 under Section 114-A of the Transfer of Property Act to remove all unauthorised constructions as the terms of lease were violated. The notice was addressed to Smt. Poornima Devi, wife of late Shri Anant Prasad. The Collector required them to remove the unauthorised constructions, failing which they will be evicted in accordance with the law. Smt. Poornima Devi replied to the notice on 14.5.1987, alleging that U.P. State Agro Industrial Corporation Ltd. made a temporary construction of a shed and that as soon as late Anant Prasad came to know about these constructions, he wrote a letter to U.P. State Agro Industrial Corporation Ltd. to demolish the constructions. Instead of demolishing the constructions for which the landlord had given their consent, the notice was given on incorrect facts. After several years Smt. Poornima Devi came to learn about the order of the Prescribed Authority dated 23.9.1991 passed on the basis of a notice dated 4.8.1979 ex-parte against her, she filed a Civil Misc. Writ Petition No. 19630 of 1991, which was admitted and the orders were stayed. During the pendency of the writ petition, the State Government issued a free hold policy under which she applied for grant of free hold rights and thereafter filed Writ Petition No. 17667 of 1996 for a direction to the Collector to dispose of her application expeditiously. The writ petition was disposed of with a direction to the Collector, Gorakhpur to decide the application within 8 weeks from the date of direction of the certified copy of the order. The writ petition was disposed of with a direction to the Collector, Gorakhpur to decide the application within 8 weeks from the date of direction of the certified copy of the order. The Collector referred the matter to the State Government on which the State Government issued orders for grant of free hold rights and the penal charges vide its letter dated 1.11.1997. 15. Shri Rahul Sripat submits that another Government Order was issued on 1.12.1998 introducing a policy of nomination for the grant of free hold rights. Smt. Poornima Devi nominated Shri Kailash Jaiswal on 14.12.1998 for 30000 sqr fts of land and Shri K.D. Agrawal on 25.2.1999 for 25000 sqr fts of land. A demand note was issued with penal charges of 5%. The entire amount was deposited and that after verification on 14/24.9.1999 all the documents/sale deeds were executed/registered by the Collector on behalf of the State Government and free hold rights were granted to Shri Kailash Jaiswal on which he became absolute owner of 30000 sqr fts of the land. The Sales Tax Office was not paying rent on which a notice was issued by Shri Kailash Jaiswal-respondent. The Assessment Commissioner, Sales Tax Gorakhpur demanding arrears of rent and terminating the tenancy. The notice was served on 25.3.2000. The rent however was not paid on which the Small Causes Suit giving rise to this writ petition was filed which was decreed and that SCC Revision No. 1 of 2006 was dismissed. The revision filed by the defendants was allowed. 16. It is submitted that the State Government has filed Suit No. 259 of 2002 through the Collector, Gorakhpur for cancellation of the sale deed. The State Government however had issued specific orders to the Collector, Gorakhpur on 9.5.2003 to withdraw the suit as on verification it was found that the lease hold rights were rightly granted to the defendant-respondents. The Sales Tax Department, however, did not permit the Collector, Gorakhpur to withdraw the suit, and requested the State Government to review the order on which the State Government has again issued order on 28.2.2006 that its order dated 9.5.2003 was just and proper and there is no reason to recall the same. The suit however has not been withdrawn and is continuing without the authority of the Collector to pursue the same. 17. The suit however has not been withdrawn and is continuing without the authority of the Collector to pursue the same. 17. In a suit for arrears of rent and ejectment the Small Causes Court, under the Provincial Small Causes Courts Act can proceed to decide the matter if the relationship of landlord and tenant is established between the parties. The Small Causes Court is not required to go into the intricate questions of titles and in such case the plaint is to be returned under Section 23 of the Act to be presented before the proper Court. If there is any dispute with regard to the title, the Court may for the purpose of deciding the relationship of the landlord and tenant, consider the validity of the sale deed. The validity of the sale deed however is only prima facie required to be considered by the Judge, Small Causes Court. In the present case, the entire bungalow was leased out to Smt. Daulat Kumari. She surrendered 50000 sqr fts of land to State Government to be leased through Shri Anant Prasad. Shri Parmeshwar Dayal Mukhtar and Shri Suraj Bali Mukhtar constructed the bungalow on the part of the surrendered land of which the lease deed was executed on 7.3.1963. This constructed building was complete in the year 1949 and was allotted to the Sales Tax office vide allotment order dated 28.6.1949 by the Collector. After partition the portion in the tenancy of Sales Tax office fell to the exclusive portion and possession of Shri Anant Prasad son of late Shri Suraj Bali Mukhtar and accordingly two lease deeds, one in favour of Shri Anant Prasad and other in favour of Shri Parmeshwar Dayal Mukhtar were executed by the Collector on 7.3.1963. The Sales Tax Department became the tenant of Shri Anant Prasad and started paying rent to him for the portion spread out in the total area of 30000 sqr fts of land. The other portion was given in the tenancy of U.P. State Agro Industrial Corporation Ltd. The temporary constructions made by the U.P. State Agro Industrial Corporation Ltd. on the portion in its tenancy. The notice given under Section 114-A on 6.3.1978 did not amount to cancellation of the lease deeds. It required the lessee to remove the constructions failing which the Collector could have entered into the possession. The notice given under Section 114-A on 6.3.1978 did not amount to cancellation of the lease deeds. It required the lessee to remove the constructions failing which the Collector could have entered into the possession. Smt. Poornima Devi replied to the letters stating that her husband had already asked the tenant to remove the constructions and that any temporary constructions raised by the tenant would not lead to cancellation of the lease deed in favour of her husband. The order of the Prescribed Authority was stayed by the High Court in Writ Petition No. 16930 of 1993. This Writ Petition was later withdrawn after she nominated the petitioner and Shri K.D. Agarwal for free hold rights of 30000 sqr fts and 25000 sqr fts on 14.12.1998 and 25.2.1999 respectively. On the execution of the deeds of free hold rights by the State Government on 14/24.9.1999, the defendants became the owners of the land and building with full right to enjoy the land. The Sales Tax Office of the State Government was occupying the land as tenant under the allotment order and that as an owner with free hold rights, the defendant became the landlord entitled to realize the rent from the Sales Tax Department. The notice of demand and termination of tenancy was served upon the Assessment Commissioner, Sales Tax, Gorakhpur. 18. The allegations of fraud and concealment of facts against Smt. Poornima Devi are yet to be established in Suit No. 259 of 2002 filed by the State Government through the Collector, Gorakhpur. In this writ petition, the Court is not concerned with the orders of the State Government directing the Collector, Gorakhpur to withdraw the suit or the fresh orders passed turning down the request of the Sales Tax Department to review its decision. The defendant has taken up these pleas in the pending suit. In this matter the Court is only concerned as to whether the plaintiff is the landlord and that the tenancy was validly terminated with a notice served upon the tenant. 19. The Courts below did not commit any error in law in holding that on the acquisition of the free hold rights granted by the State Government, vide deeds of transfer the plaintiff became the owner and entitle to realise the rent from the defendant occupying the premises in terms of the allotment order. 19. The Courts below did not commit any error in law in holding that on the acquisition of the free hold rights granted by the State Government, vide deeds of transfer the plaintiff became the owner and entitle to realise the rent from the defendant occupying the premises in terms of the allotment order. It was not open to the State Government, which accepted the amount for converting the lease hold rights into free hold rights and executed the sale deeds, giving free hold rights to the plaintiff, to have denied the right of the plaintiff to demand rent and to terminate the tenancy. 20. In T. Lakshmipathi and others v. P. Nithyananda Reddy and others, (2003) 5 SCC 150 , the Supreme Court, while considering common law doctrine of merger statutorily embodied in Section 111 (d) of the Transfer of Property Act, 1982, held that the doctrine of merger as statutorily recognised in India, contemplates “(i) coalescence of the interest of the lessee and the interest of the lessor, (ii) in the whole of the property, (iii) at the same time, (iv) in one person, and (v) in the same right. There must be a complete union of the whole interests of the lessor and the lessee so as to enable the lesser interest of the lessee sinking into the larger interest of the lessor in the reversion.” 21. In Badri Narain Jha v. Rameshwar Dayal Singh, AIR 1951 SC 186 , it was held by the apex Court that if the lesser purchases the lessee’s interest, the lease no doubt is extinguished as the same man cannot, at the same time, be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchased only a part of the lessor’s interest. In such a case the leasehold and the reversion cannot be said to coincide. 22. The building in this case was constructed by lessee on the land leased by the State Government. The allotment order, by which the building was let out to the Sales Tax Department, was in respect of a building which would include the land. In such a case the leasehold and the reversion cannot be said to coincide. 22. The building in this case was constructed by lessee on the land leased by the State Government. The allotment order, by which the building was let out to the Sales Tax Department, was in respect of a building which would include the land. The notice given to the lessee for having violated to the terms of the lease of raising temporary constructions in the premises let out to the U.P. State Agro Industrial Corporation Ltd. on the admission of Branch Manager of the Corporation that he had raised temporary shed on which the question of permission, was disputed by the State Government would not operate to terminate the lease. An ex-parte order of eviction passed by the Prescribed Authority under U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 was not carried out, as it was stayed by the Court. The State Government in the meantime issued the policy of converting lease hold land into free hold and that after examining all the documents, the nomination made by Smt. Poornima Devi was accepted and the land was sold by sale deeds to the plaintiff respondent Shri Kailash Jaiswal. By this sale deed, 30000 sqr fts of land was sold to Shri Kailash Jaiswal and the remaining land measuring 25,080 sqr fts was sold to Shri Kailash Prasad Jaiswal. 23. In the plaint of OS No. 259 of 2002, pending in the Court of Civil Judge, Senior Division, Gorakhpur, the free hold deeds dated 14.9.1999/24.9.1999 executed by the Collector on behalf of the State Government in favour of Shri Kailash Jaiswal registered at page No. 307/356, serial No. 1542 is sought to be cancelled on the ground that Shri Anant Prasad had violated the terms of the lease deeds, on which he was issued a notice on 21.5.1978 for cancellation of the sale deed and for eviction, and the proceedings were taken under Sections 4 and 7 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 in Case No. 98/88 in the Court of Prescribed Authority/City Magistrate in which the orders of eviction was passed against Smt. Poornima Devi on 4.8.1989 and that the possession was taken by Nagar Nigam on 4.9.1991 and was handed over to the Sales Tax Department. The U.P. State Agro Industrial Corporation Ltd. had obtained stay order with regard to remaining land in appeal. In Writ Petition No. 19630 of 1991, filed by Smt. Poornima Devi in this Court, the order was stayed but before the order could be stayed, the possession was taken and handed over to the Sales Tax Department. These facts were withheld in execution of the free hold deeds. 24. The essential averments of playing fraud by a person, who had played fraud and the manner in which the fraud was played and on whom the fraud was played, have not been disclosed in the plaint. The Court however would not like to comment upon the merit of the case. It is sufficient to state here that denial of the relationship of the landlord and tenant, based on fraud in execution of the free hold deeds by which the free hold rights were granted, has not been established. The expression ‘fraud’ involves the elements of ‘deceit’ and ‘injury’ to the person deceived. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a cheating intended to get advantage. It is a conduct either by letter or words, which includes the other person or authority to take a different stand as a response to the conduct of the former either by words or letter. In Bhaurao Dagdu Paraikar v. State of Maharashtra, (2005) 7 SCC 605 , the Supreme Court held that a fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act and on falsehood. It is a fraud in law, if a party makes representations, which he knows to be false, and injury enures therefrom, although the motive from which the representations proceeded may not have been bad. The representation to become fraudulent, must be of fact with knowledge that it was false. In this case the relationship of landlord and tenant has been denied on the ground that free hold deeds have been executed by playing fraud. By a notice under Section 114, the lease was terminated and lessee was evicted under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. In this case the relationship of landlord and tenant has been denied on the ground that free hold deeds have been executed by playing fraud. By a notice under Section 114, the lease was terminated and lessee was evicted under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. It is alleged that the lessee misrepresented by making nomination under a policy to convert lease hold land into free hold and thereby obtained advantage by nomination and consequent sale to the nominee. 25. The lease holds rights did not come to an end with the notice. Shri Anant Prasad had given reply, denying the offending acts. The U.P. State Agro Industrial Corporation Ltd. had obtained an stay order in appeal and that the eviction order passed under U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 was stayed in the writ petition. During the pendency of these interim orders, which were in the knowledge of the State Government, the free hold rights were granted. In the circumstances it cannot be said that lessee of the land had played fraud upon the State Government, in making nomination and obtaining sale deeds which are still subject matter of consideration in the suit filed by the State Government for cancellation of the sale deeds. 26. The assertion, that the possession was handed over by the Collector to the Sales Tax Department and that the department ceased to be tenant of the owner of the land and building, does not take into account, the fact that the building was not constructed by the State Government. There were interim orders passed in the appeal against the order of eviction by the Prescribed Authority, and in the writ petition. The handing over of the possession either before or after interim orders, would not merge the property including the land and building in the State Government, so as to frustrate the tenancy beginning from the allotment order passed by the District Magistrate in 1949. The tenancy never came to an end, and that there was no merger much less a complete merger of the lease hold rights of the State Government in the State Government itself. 27. The tenancy never came to an end, and that there was no merger much less a complete merger of the lease hold rights of the State Government in the State Government itself. 27. I do not find that the District Judge committed any error in law in rejecting the plea that there was no relationship of landlord and tenant to confirm the decree of arrears of rent and eviction passed by Judge, Small Causes Court. The writ petition is dismissed. ———