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2015 DIGILAW 3521 (ALL)

Abdul Hafiz v. Akbar Ali

2015-11-06

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal,J. Heard Sri Salil Kumar Rai, learned counsel for the petitioner and Sri Hausihla Prasad Mishra, learned counsel for the respondent. 2. The sole ground of challenge of the release orders passed by this Court below is that the release application itself was not entertainable on 12.03.2012 as it was filed before expiry of period of three years as per the proviso to sub Section (1) of Section 21 of U.P. Act No. 13 of 1972. A brief facts relevant to decide the controversy are that a sale deed has been executed in favour of the plaintiff respondent on 25.09.2010 and they claimed the ownership on the strength of the said sale deed. On 05.09.2011, a notice was served upon the defendants-petitioners bringing to their knowledge the fact of purchase and that the landlord required the premises for her personal need. The fact of default in rent was also mentioned therein. The release application under Section 21 (1) (a) was filed on 12.03.2012 which was registered as PA Case No. 8 of 2012. Written statement was filed by the petitioners on 23.08.2012. The specific ground taken in the written statement to contest the release application was as follows: - No. 41 . ;g fd nj[kkLr lk;y dkuwuu esUVsusoqy ugha gSA 3. In the replication filed on 11.09.2012, no specific reply was given to that paragraph. On 16.07.2013, affidavit of witness was filed by the petitioners and by that time, the landlord had also led his evidence. The Prescribed Authority had proceeded with the matter and allowed the release application on 06.08.2014. While placing the order of the Prescribed Authority the submission of learned counsel for the petitioner is that the plea with regard to entertainability of the release application was taken at the first stage while filing written statement. The Prescribed Authority, therefore had committed error of law in entertaining and proceedings with the release application on merits. An issue no. 1 was framed regarding entertainability of the release application but no specific finding has been given by the Prescribed Authority. After dealing with the submission of the petitioner, the Prescribed Authority without giving any reason had simply concluded that the release was maintainable under Section 21 (1) of U.P. Act No. 13 of 1972. An issue no. 1 was framed regarding entertainability of the release application but no specific finding has been given by the Prescribed Authority. After dealing with the submission of the petitioner, the Prescribed Authority without giving any reason had simply concluded that the release was maintainable under Section 21 (1) of U.P. Act No. 13 of 1972. The Appellate Authority has gone ahead in deciding with the objection of the petitioner on the wrong interpretation of judgment of this Court in Mishri Lal and another Vs. 9th Additional District Judge Gorakhapur and others 1992 Vol. II ARC 546. The preposition led down in Mishri Lal (supra) is not at all applicable in the facts and circumstances of the case. 4. There is no dispute about the fact the release application was filed for personal need within a period of three years from the date of purchase. Proviso of Section 21 (1) (a) reads as under: - "Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds, mentioned in clause (a), unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years." 5. Careful perusal of the proviso indicates that the release application on personal need under clause (a) of Sub Section (1) of Section 21 is not entertainable within a period of three years since the date of purchase. Whether the landlord had given a six months notice or not would be immaterial if the release application is filed within a period of three years from the date of purchase. The word "unless" read with the word "and" in between the words "period of three years has elapsed since the date of purchase"; landlord has given a notice in that behalf to the tenants not less than six months before such application" make the intention of the legislature clear to put a bar in filing the release application within a period of three years from the date of purchase. This issue is no longer res-integra. This issue is no longer res-integra. In view of the judgment of the Apex Court in Martin & Harris Vs. VIth Additional District Judge & Ors., 1998 (1) SCC 732 and a recent judgment in the Nirbhai Kumar vs. Maya Devi & Ors. (2009) 5 SCC 399 , there cannot be a dispute. 6. The learned counsel for the respondent has not been able to raise any plausible argument to submit that the release was maintainable on the date of its filing i.e. on 12.03.2003. His only submission is that the release was maintainable on the date of decision i.e. on 06.08.2014 by the Prescribed Authority. This argument of the learned counsel for the respondent is devoid of force inasmuch as the words used in proviso to sub Section 1 of Section 21 are "entertained" and not 'maintained". The word "entertain" cannot be related to the date of decision on the release application. In this view of the matter this Court is of the opinion that the release itself was not entertainable on the date of filing and could not have been proceeded by the Prescribed Authority. Only exception to this principle as carved down in the decision of the Apex Court is that in the facts and circumstances of a given case, the Court may come to the conclusion that the tenant has waived of the requirement of notice or the plea of entertainability of the release application and contested the matter on merits resultantly the landlord had altered his position over the period of time. 7. In the instant case, plea of waiver is not available for the reason that the tenant has taken this plea at the very first instance i.e. on the date of filing of the written statement/objection to the release application. In the totality of the facts and circumstances of the case, this Court finds that the Courts below have committed error of law, both the judgments are hereby quashed. The release application filed under Section 21 (1) (a) by the respondents landlord on 12.03.2012, PA Case No. 8 of 2012 is held not entertainable. 8. It goes without saying that the respondent landlord is at liberty to file a fresh release application on the plea available to him. The release application filed under Section 21 (1) (a) by the respondents landlord on 12.03.2012, PA Case No. 8 of 2012 is held not entertainable. 8. It goes without saying that the respondent landlord is at liberty to file a fresh release application on the plea available to him. In case such an application is filed, the notice given to the petitioners-tenant dated 05.09.2011 is held legal for all practical purposes as there is no challenge to the same. 9. The writ petition is allowed.