Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 158 (ALL)

Moin Uddin v. Sayed Afaq Hussain Abdi

2016-01-12

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal,J. Heard Sri Udayan Nandan, learned counsel for the petitioners and Sri Atul Dayal and Sri K.K. Nirkhi, learned counsels for the respondents. By means of the present writ petition, the petitioners are challenging the order of release passed by two courts below on the ground that the release application was not entertainable in absence of notice as required under first proviso to sub-section (1) of Section 21. The premises was purchased by Sayed Mustafa Hussain in the year 1980 and a release application was filed for the residential accommodation under tenancy for the personal need of the family of the landlord. The petitioner who was sitting tenant at the time of purchase and as such the landlord was required to give six months notice before filing the release. 2. Learned counsel for the respondent on the other hand submits that since the premises was purchased 27 years prior to the filing of the release, the notice as mandated under first proviso to sub-section (1) of Section 21 lost its significance. The tenant was paying rent to the landlord for the last 27 years. In case the requirement of first proviso is pressed, it will make the entire clause (a) of sub-section (1) unworkable as by his own conduct, the tenant had accepted the applicant as landlord who had stepped into the shoes of the original landlord. There was no requirement of notice in such a case. The release could have been filed by the original landlord without notice and after 27 years of purchase, the current landlord could very well maintain the release application without service of notice upon the tenant. 3. This apart, a notice has been served upon the mother of the petitioner tenant who was the original tenant and the said notice was proved before the lower appellate court. 4. In view thereof, the release order passed by the courts below need not be interfered. 5. Before dealing with the submissions of learned counsel for the parties on the facts of the present case, it would be appropriate to go through the law relating to requirement of six month's notice provided under first proviso to sub-section (1) of Section 21 which is the main thrust of challenge to the order of release. 6. 5. Before dealing with the submissions of learned counsel for the parties on the facts of the present case, it would be appropriate to go through the law relating to requirement of six month's notice provided under first proviso to sub-section (1) of Section 21 which is the main thrust of challenge to the order of release. 6. There are three judgments of the Apex Court wherein the issue of applicability of first proviso to sub-section (1) of Section 21 of U.P. Act No. 13 of 1972 has been discussed. They are Martin & Harris Ltd. vs. VIth Additional Distt. Judge and Others (supra), Anwar Hasan Khan vs. Mohd. Safi and others (supra) and Nirbhai Kumar v. Maya Devi and others (supra). 7. Section 21(1)(a) and the first proviso to sub-section (1) of Section 21 relevant are reproduced as under: - "Section 21. Proceedings for release of building under occupation of tenant.- (1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely- (a) that the building is bonafide required either in its existing from or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust; (b) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 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: " 8. A careful perusal of Clause (a) to sub-section (1) indicates that a landlord of a building can file an application for eviction of a tenant from the building under tenancy on the ground of bonafide requirement for occupation by himself or any member of his family or a person for whose benefit it is held by him. The requirement may be either for residential purposes or for the purpose of any profession, trade etc. 9. The first proviso to sub-section (1) of Section 21 creates a special class of landlord and remove this special class from the general class provided under sub-section (1) of Section 21. This special class of the landlords are the persons who purchase a building having a sitting tenant at the time of the purchase. The purpose of this enactment is clear for providing protection to the sitting tenants from unscrupulous landlords who purchase the building with the sole objective to evict them. That is why embargo of three years has been imposed and a release even on personal need before expiry of the period of three years cannot be entertained. 10. The word "entertain" has been interpreted in Martin & Harris Ltd's case and it was held that the word "entertain" cannot be construed as being synonymous with the word "institute". It was held that the term "entertain" would only show that by the time the application for possession on the grounds mentioned in clause (a) of Section 21 (1) is taken up by the Prescribed Authority for consideration on merits, at least minimum three years' period should have elapsed since the date of purchase of the premises by the landlord. Thus the question raised before the Apex Court that the respondent-landlord's application under Section 21(1)(a) of the Act was not maintainable in view of the proviso to the Section as it was filed before expiry of three years' period from the date of purchase of the suit premises by the respondent was decided in negative and it was held that the application was perfectly entertainable and as it was decided after three years there was no error in the decision of the Prescribed Authority. 11. 11. The second question whether the application under Section 21(1)(a) of the Act was not maintainable if it was filed prior to the expiry of the six months from the date of the notice which was given by the respondent-landlord as provided under proviso to the said section was answered in affirmative on the facts of that case. It was held in paragraph 11' that the notice as required in the proviso has to be treated to be mandatory before filing of the release application. 12. However, in paragraphs 12' and 13', it was further held that the requirement of notice under proviso is beneficial provision enacted by the legislature for the protection of the tenant and it could be waived by the tenant. On the facts of the case in Martin & Harris Ltd., it was held that the requirement of the notice was waived by the tenant. It was found that though an objection was taken in the written statement filed before the Prescribed Authority but it was not pressed for consideration later on. As a result of it, the respondent-landlord by the said conduct of the appellant-tenant irretrievably changed his position. The contention raised before the High Court at a late stage, would seriously prejudice the respondent-landlord. More so after both the courts had concurrently held on the facts that the respondent-landlord had proved his case on merits. 13. In paragraph 13', it has been held that the proceedings under Section 21(1)(a) of the Act are between the landlord on the one hand and the tenant on the other. These proceedings are not of any public nature. Nor any public interest is involved therein. Only personal interest of the landlord on the one hand and the tenant on the other hand get clashed and call for adjudication by the Prescribed Authority. The ground raised by the landlord under Section 21(1)(a) would be personal to him and similarly defence taken by the tenant would also be personal to him. Six months' breathing time is given to the tenant after service of notice to enable him to put his house in order and to get the matter settled amicably or to get alternative accommodation if the tenant realises that the landlord has a good case. This type of protection to the tenant would naturally be personal to him and could be waived. 14. This type of protection to the tenant would naturally be personal to him and could be waived. 14. After considering the law on waiver, it was held that the provisions for six months' notice before initiation of proceeding under Section 21(1) of the Act though is mandatory and confers protection on the tenant concerned, it can be waived by him. 15. In the case of Anwar Hasan Khan, the facts were that the shops were purchased on 2.8.1979. The father of the original tenant died somewhere in 1989. As the appellant tenant had not paid the rent, the respondent-landlord issued a notice to him on 6.2.1995 calling upon for payment of arrears of rent. Thereafter, he filed an application for release under Section 21(1)(a) of the Act which was resisted on the grounds of maintainability in the absence of six months notice required as per first proviso of Section 21 of the Act. The release application was allowed and the order was affirmed in appeal and the writ petition. The matter has travelled to the Apex Court and considering the language in the first proviso and the main section, it was held that the object of the service of notice is to furnish information to the tenant about the requirement of the landlord in order to enable him to search for an alternative accommodation or to find out as to whether the sale made by his erstwhile owner was genuine and bonafide or not. 16. The process and the notice as contemplated under it was never intended to be a permanent clog on the right of the purchaser. The period as contemplated under proviso to sub-section (1) of Section 21 is intended to be for a period of three years and in no case for more than three years and six months. Any proceeding initiated for release of building under occupation of the tenant on the aforesaid ground after the period contemplated under the aforesaid proviso does not require the service of aforesaid notice of six months. After laying down this preposition, it was held that the appellants were paying rent to the landlord after death of their father in the year 1989 and the landlord had purchased the shop in the year 1979 and therefore, they became the tenant of respondent-landlord and were entitled to the protections guaranteed to the statutory tenant under the Act. After laying down this preposition, it was held that the appellants were paying rent to the landlord after death of their father in the year 1989 and the landlord had purchased the shop in the year 1979 and therefore, they became the tenant of respondent-landlord and were entitled to the protections guaranteed to the statutory tenant under the Act. The respondent-landlord had successfully proved the existence of the ground of release under Section 21(1)(a) which was upheld by the Appellate Court. The order of eviction passed against the appellant was upheld while dismissing the appeal. 17. Noticing this conflict between the above decisions in Martin & Harris Ltd. and Anwar Hasan Khan, reference was made to larger Bench which was considered in Nirbhai Kumar (supra). 18. After considering the paragraph 13' of Martin & Harris Ltd.s case and paragraph 10' of the Anwar Hasan Khan's case and proviso to sub-section (1) of Section 21, it has been held in Nirbhai Kumar that a three years' period becomes relevant when there is a change of ownership. This three years' period is a sort of moratorium intended for the tenant's protection. Considering the expression in the proviso "any such notice may be given even before the expiration of the aforesaid period", it was held that the notice can be given either before or after the three years' period. After expiry of the three years' period the protection given to the tenant from being evicted has no further relevance. Thereafter it is only the question of notice. 19. After having said so it is observed in paragraph 5' of the said report: - "5. Above being the position the decision in Martin & Harris Ltd. case express the correct view. Unfortunately, the said decision does not appear to have been placed before the Bench which heard Anwar Hasan Khan case." 20. Thus it is held by the Apex Court that the release application by a purchaser landlord can only be maintained when it is preceded by a six months notice. The notice is mandatory even after three years from the date of purchase and the tenant would be entitled to contest on the maintainability of the release application on this ground. However, the ground of maintainability has to be taken at the first instance and would not be allowed at a later stage. The notice is mandatory even after three years from the date of purchase and the tenant would be entitled to contest on the maintainability of the release application on this ground. However, the ground of maintainability has to be taken at the first instance and would not be allowed at a later stage. In case such an objection is taken at a late stage it would be considered to have been waived and the matter would proceed on merits. 21. In this legal scenario, the facts of the present case are to be sifted. In the present case, the release application has been filed on 31.7.2007 by Sayed Mustafa Hussain father of the respondent nos. 1 to 5 for the need of his family members. In the release application, there is no averment with regard to six months notice rather the assertion is that the opposite parties and their mother were requested to vacate the house in question. It is further stated that in the year 1994 on account of marriage of eldest son of the purchaser landlord, he had to construct one room at the first floor. In the year 1999 again on account of refusal by the opposite parties, the applicant landlord had to construct one room at the first floor for his son Irfan who got married. 22. In his objection, a specific stand has been taken by the tenant in paragraphs 13' and 29' of the written statement that the release application was not maintainable in absence of notice. 23. In replication, while replying the paragraph 13', it is stated by the applicant landlord namely Sayed Mustafa Hussain who filed his own affidavit that no notice under Section 21(1)(a) was required as the deponent had requested the respondents orally and in writing to vacate the house in question. He was owner in possession for the last 30 years and therefore also no notice is required. 24. Again in reply to the paragraph 29', it is stated in replication filed on 21.3.2009 that no notice was required to be given to the opposite parties. 25. In an affidavit dated 6.1.2007 filed in support of the release application in paragraph 18', it is stated by the applicant landlord that no written notice was required under the provisions of the Act and the release application was not barred by any provision of law. 25. In an affidavit dated 6.1.2007 filed in support of the release application in paragraph 18', it is stated by the applicant landlord that no written notice was required under the provisions of the Act and the release application was not barred by any provision of law. Simultaneously, it was also stated in the same paragraph the deponent namely Sayed Mustafa Hussain had pleaded the opposite parties and their mother to vacate the house in question but they did not accede to his request and therefore, the cause of action for filing the release application arose. 26. The Prescribed Authority framed issue no. 2 to examine as to whether the release application was not maintainable in absence of six months notice under first proviso to Section 21(1) of the Act. 27. The finding on issue no. 2 is that no notice was required as the release application was filed after 27 years of purchase. 28. Reliance has been placed upon the judgment of Apex Court in Anwar Hasan Khan's case and the subsequent judgments of this Court relying upon the said decision. 29. It appears that before the appellate Court, an application under Order 41 Rule 27 was filed on 29.3.2012 by sons of the applicant landlord Sayed Mustafa Hussain. This application was accompanied by an affidavit of Sayed Imran Hussain Abdi son of Sayed Mustafa Hussain (the applicant landlord). 30. It is stated in paragraph 3' and 4' of the affidavit dated 29.3.2012 that a notice dated 9.9.1993 was sent through U.P.C. to the mother of the appellant tenant namely Smt. Pachcho by their father namely Sayed Mustafa Hussain. The father of the deponent namely the applicant landlord was an Advocate and he lost U.P.C. receipt as he was suffering from Cancer of esophagus since the year 2006. The deponent could find the receipt of the notice in the house during white-washing. 31. This application was allowed by order dated 30.5.2012 which was challenged before this Court in Writ Petition No. 49677 of 2012 (Moinuddin and another vs. Syed Afaq Hussain Abdi and others). This Court though dismissed the challenge but on the merits of the application, it was observed that the question of notice would be examined by the appellate Court. 32. This application was allowed by order dated 30.5.2012 which was challenged before this Court in Writ Petition No. 49677 of 2012 (Moinuddin and another vs. Syed Afaq Hussain Abdi and others). This Court though dismissed the challenge but on the merits of the application, it was observed that the question of notice would be examined by the appellate Court. 32. In appeal, the appellants had pleaded that the notice which was brought on record by application in the year 2012 is a forged document inasmuch as no such plea was taken by the applicant landlord in the release application and the replication filed by him rather his consistent stand was that no written notice was required and oral request was made from the mother of the appellant. 33. This objection of the appellant could not have been rejected by the lower appellate court on the ground that the notice was sent to their mother and therefore the appellant could not have denied its service. 34. The pleadings of the parties discussed above clearly reflects that the applicant landlord Sayed Mustafa Hussain had never taken a plea before the trial court that he had ever served a notice upon the mother of the appellant namely Smt. Pachcho rather in his personal affidavits, the averments are otherwise. After his death, the alleged notice dated 9.9.1993 was brought on record by way of an application filed in the year 2012 by sons of the applicant landlord. 35. It is also reflected from the record that the applicant landlord was an Advocate. In case he would have sent a notice in the year 1993 upon Smt. Pachcho the mother of the appellant, there was no reason for him to plead that no written notice was required. 36. This fact itself is sufficient to conclude that no notice was served at any point of time to the mother of the appellant namely Smt. Pachcho by the applicant landlord. This conclusion can safely be drawn in view of the specific averment of the applicant landlord in his personal affidavits filed in support of the release application in the year 2007 and further in the year 2009. The lower appellate court had committed a grave error of law in assuming the service of notice alleged to be sent by U.P.C. by ignoring this fact. The lower appellate court had committed a grave error of law in assuming the service of notice alleged to be sent by U.P.C. by ignoring this fact. No presumption could have been drawn regarding service of notice by U.P.C. as there was sufficient evidence to rebut the service. 37. In view thereof, it is concluded that the findings of lower appellate court that six months notice was served upon the mother of the appellant tenant is perverse being against the evidence on record. 38. On the question of waiver, the argument of the learned counsel for the respondent is that waiver was by the conduct of the tenant in tendering the rent. This submission is not worthy of acceptance inasmuch as the fact of tendering of rent would be relevant to ascertain the landlord tenant relationship. 39. There is no dispute about such relationship rather the objection is to the maintainability of release on the date of filing in absence of the mandatory notice. 40. The Apex Court in Nirbhai Kumar has clarified that notice is required even after three years of purchase. 41. In the present case, the tenant had taken objection to the maintainability of release at the first instance in his objection filed in the year 2007. There was an option before the landlord to take his application back and file fresh application after six months by serving a notice. He had taken a chance and therefore it cannot be said that he would be prejudiced by rejection of the release. 42. In view of the above discussion, this Court comes to an irresistible conclusion that no notice as required under first proviso to sub-section (1) of Section 21 has been served upon the petitioner before filing the release. In absence of such notice, the release application filed in the year 2007 by Sayed Mustafa Hussain on the personal need under Section 21 (1) (a) was not entertainable. It could not have been proceeded on merits by the Courts below. The Prescribed Authority has wrongly allowed the release by applying a wrong principle on the ground that no notice was required and the lower appellate court has erred in raising a presumption on the service of alleged notice dated 9.9.1993, brought on record in appeal. 43. It could not have been proceeded on merits by the Courts below. The Prescribed Authority has wrongly allowed the release by applying a wrong principle on the ground that no notice was required and the lower appellate court has erred in raising a presumption on the service of alleged notice dated 9.9.1993, brought on record in appeal. 43. Both the judgments and orders dated 11.10.2010 passed by the Prescribed Authority and the lower appellate court dated 1.3.2013 are hereby quashed. 44. The release application is rejected as not maintainable. 45. The writ petition is allowed. No order as to costs.