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2001 DIGILAW 1004 (ALL)

RAMA SHANKAR TEWARI v. DISTRICT JUDGE, VARANASI

2001-11-05

A.K.YOG

body2001
A. K. YOG, J. ( 1 ) PETITIONER, who happens to be a tenant of one room ground floor non-residential accommodation being part of House No. B20/34, Bhetupura, Varanasi, has approached this court under Article 226. Constitution of India seeking to challenge concurrent judgments and orders dated 16. 5. 2001 (Annexure-10 to the petition) passed by the Prescribed Authority under section 21 (1) (a)-1st proviso, U. P. Urban Buildings (Regulation of Letting. Rent and Eviction)Act, 1972, U. P. Act No. XII of 1972 (for short called the Act ). and the appellate judgment and order of affirmance dated 19. 9. 2001 passed by appellate authority, respondent No. 1 (Annexure-12 to the petition ). ( 2 ) CONTESTING respondent landlord is represented by his counsel Sri P. K. Ganguli, advocate who appeared as counsel for the caveator applicant-respondent No. 2. ( 3 ) HEARD learned counsel for the parties and perused the record of the case. ( 4 ) ON behalf of the petitioner, following two submissions have been made : "the courts below committed manifest error in law apparent on the face of record in interpreting the first proviso of Section 21 (1) (a) of the Act. According to the petitioner, the said first proviso was applicable to the facts of present case since the landlord had purchased building with the petitioner as tenant after the commencement of the Act. Petitioner submitted that release application in the instant case was not maintainable since six months period under the aforesaid proviso, had not expired inasmuch as the notice of six months was received by the petitioner on august 29, 1996, but the release application was filed on 3. 3. 1997, i. e. , before expiry of six months of receiving the notice. " ( 5 ) LEARNED counsel for the contesting respondent landlord submitted that notice was given on 29. 8. 1996 and if six months period under the concerned proviso is to be computed from the aforesaid date, then six months had lapsed before filing of the application. ( 6 ) BOTH the courts below considered the aforesaid contention in the light of the decision of the apex Court in the case of Martin and Harris Limited v. VIth Additional District Judge and Ors. , 1998 (1) AWC 580 (SC), Para 15 of the said judgment reads as follows : "15. ( 6 ) BOTH the courts below considered the aforesaid contention in the light of the decision of the apex Court in the case of Martin and Harris Limited v. VIth Additional District Judge and Ors. , 1998 (1) AWC 580 (SC), Para 15 of the said judgment reads as follows : "15. So far as this point is concerned, it must be held on the clear language of the first proviso to section 21 (1) of the Act that application for possession under Section 21 (1) (a) had to be filed by the landlord concerned not earlier than expiry of six months from the date of issuance of the notice by the landlord. On the facts of the present case, it cannot be disputed that when the notice was issued on September 20, 1985, the application for possession could not have been filed by the respondent invoking the grounds mentioned in Clause (a) of Section 21 (1) of the Act, at least till March 20, 1986, while the application was filed in January, 1986. To that extent, it can be said that the application was premature. The provision in this connection has to be treated to be mandatory. " And the decision of learned single Judge, (Hon. Mr. A. K. Yog, J. ). In the case of Anwar Hasan khan v. District Judge, Shahjahanpur and Ors. , 2000 (1) AWC 65o : 2000 (1) ARC 43, this court did not consider or held whether six months period is to be calculated from the date of giving of notice or receipt of the notice. ( 7 ) THE Apex Court in the case of Martin and Harris Limited (supra), however, observed that as per the language and expression used in the first proviso to Section 21 (1) (a) of the Act, relevant date for computing the period of six months for the purposes of giving reasonable notice is "the date of issuance of the notice by the landlord. " ( 8 ) A careful reading of para 16 of the aforesaid judgment (Martin and Harris Limited) reveals that Supreme Court was not directly concerned with the point (whether six months time is to be reckoned from the dale it is given or the date it is received ). " ( 8 ) A careful reading of para 16 of the aforesaid judgment (Martin and Harris Limited) reveals that Supreme Court was not directly concerned with the point (whether six months time is to be reckoned from the dale it is given or the date it is received ). Expression in para 16 of the judgment service of notice has been used with reference to the objection taken by the landlord in the written statement ; other provisions of the Code of Civil Procedure in the context of the arguments of the learned counsel for the tenant, in that case as to whether objection regarding maintainability of the release application, requisite six months could be waived or not, even though essential requirement of giving six months notice was mandatory. ( 9 ) A careful reading of the judgment of the Apex Court in the case of Martin and Harris Limited, (supra) clearly shows that period of six months for the purposes of first proviso to Section 21 (1) (a) of the Act is to be computed from the date of issuing notice. Apex Court has taken notice of the language used in the said first proviso where the landlord has used the word has given a notice (Emphasis given by me ). I do not find any manifest error apparent on the face of the record in the impugned orders passed by the two courts below in this respect. ( 10 ) EVEN otherwise, I find that petitioner had in fact more than six months before the release application is entertained, i. e. , allowed. The petitioner had substantially much more time than six months and thus no prejudice appears to have been caused to him. Substantial justice having been done, I do not find this issue to be sufficient for invoking my extraordinary discretionary jurisdiction under Article 226, Constitution of India. ( 11 ) LEARNED counsel for the petitioner lastly made submission in order to assail findings of fact on the question of comparative hardship on the basis of the extent of accommodation available to the landlord who is a practicing advocate, and his need for the purposes of his Chambers, as well as the circumstance that the tenant has his own accommodation (para 13 of the above judgment pp. 140 of the writ paper book ). 140 of the writ paper book ). It cannot be said that hardship likely to be suffered by the tenant as compared to the landlord in the facts and circumstances of the case shall be more. ( 12 ) CONCURRENT findings of fact recorded by the two courts below on the question of comparative hardship do not warrant any interference by this Court under Article 226. Constitution of India, merely when the petitioner fails to demonstrate such finding being perverse or otherwise vitiated. ( 13 ) I find no merit in the petition. It is accordingly dismissed. ( 14 ) NO order as to costs. .