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2015 DIGILAW 1376 (ALL)

Akhtar Ali v. Kanpur Development Authority

2015-05-25

SUNEET KUMAR

body2015
JUDGMENT Suneet Kumar, J. Short-counter affidavit filed today is taken on record. Heard learned counsel for the parties. 3. The petition is directed against the order dated 30.03.2015 passed by the learned Additional District Judge, Room No. 16, Kanpur Nagar in Rent Appeal No. 99 of 2011. 4. The second respondent landlady filed an application for release of the disputed property under Section 21(1)(a) of the Act No. 13 of 1972, being P.A. Case No. 59 of 2005. The respondent, landlady purchased the House No. 89/140, quarter no. 32, Dalel Purva, Kanpur Nagar vide sale deed dated 30.03.2003 executed by erstwhile landlord. The second respondent by notice dated 20.10.2014 sought release of the property, as she and her family were residing in a? tenanted house. Bonafide need and? the comparative hardship was decided in favour of? the second respondent, but? the prescribed authority rejected the release application for the reason that notice was not in terms of the? proviso to Section 21(1)(a) thus being invalid. Aggrieved, the second respondent filed an appeal, under Section 22 of the Act, being? appeal no. 99 of 2011, (Smt. Rashida Begum Versus Akhtar Ali), assailing the rejection of the release application on the ground of validity of the notice. Whereas, the petitioner filed a separate appeal against the finding recorded on bonafide need and comparative hardship, being appeal no. 81 of 2012, (Akhtar Ali Versus Rashida Begum),? both the appeals were heard together and decided by a common? judgment and order dated 30.03.2014. 5. The appeal filed by the second respondent (Appeal No. 99 of 2011) was allowed holding that the notice was sufficient, whereas, the appeal filed by the petitioner (Appeal No. 81 of 2012) was rejected. 6. Present writ petition has been filed against the judgment and order arising from Rent Appeal No. 99 of 2011. It is admitted by learned counsel for the petitioner that no petition? has been filed assailing the judgment and order rendered in Rent Appeal No. 81 of 2012. Be that as it may, concurrent finding of fact recorded in respect of bonafide need and comparative hardship is not under challenge in the present writ petition. The writ petition is confined only regarding the factum of sufficiency of notice. 7. has been filed assailing the judgment and order rendered in Rent Appeal No. 81 of 2012. Be that as it may, concurrent finding of fact recorded in respect of bonafide need and comparative hardship is not under challenge in the present writ petition. The writ petition is confined only regarding the factum of sufficiency of notice. 7. It is not in dispute that the property was purchased on 30.03.2003 by the second respondent, the notice was given 20.10.2004, the release application was filed on 28.10.2005 which was decided on 28.07.2011, thus, the ground taken in the writ petition regarding the validity of notice in terms of Section 21(1)(a) has no substance in the light of the judgment rendered by the Supreme Court in Martin and Harris Limited Versus VI Additional District Judge and others, (ARC 1998 Vol-1, Page 109) wherein it has been held that bar of first proviso to Section 21(1)(a) that no application be entertained before the expiry of three years, does not apply to the institution of such application. It applies to the entertainment of the application and such an application can be entertained upon expiry of three years. 8. Having the regard to the facts and circumstances of the case, the writ petition being devoid of merit is accordingly dismissed. 9. However, it is provided that in case the petitioner gives an undertaking on oath before the Additional District Judge, Court No. 16, Kanpur Nagar that he will vacate the premise in question and hand over the possession of the same peacefully to the respondent-landlady on or before 31 December 2015, eviction of the petitioner be not done till then. The aforesaid undertaking on oath shall be given by the petitioner before the court below within a period of ten days from today and the petitioner shall deposit the monthly rent of the premises in question before the Additional District Judge, Court No. 16, Kanpur Nagar, as per current rent fixed and shall continue to deposit the same by 07th of each calendar month till the vacation of the premises in question, which amount may be permitted to be withdrawn by the respondent-landlady after due verification by the court concerned. 10. In case of default, protection granted above to the petitioner shall automatically stand vacated.