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2017 DIGILAW 1054 (ALL)

Jagdish v. Mira Jaiswal

2017-04-19

SIDDHARTHA VARMA

body2017
JUDGMENT : Siddhartha Varma, J. 1. The respondents filed an application under Section 21 (1)(a) of the U.P. Act No. 13 of 1972 for the eviction of the petitioners from the premises no. 64/86 Gadaria Mohal, District Kanpur Nagar, on 22.10.2012, after giving a notice on 21.9.2011. The ground taken in the application, under Section 21(1)(a) of the U.P. Act No. 13 of 1972, was that there was a bona fide need of the respondents in-as much as respondent nos. 1 and 2 had two sons and a daughter and they required additional accommodation for them as also for the various relatives/guests who visited them often. The petitioners-tenants filed their written statement/reply to the petition and made an effort to show that the bona fide need, as was projected by the landlord/respondents, was not genuine and that if they vacated the premises in question then the hardship which would be suffered by them would be much greater than that which would be suffered by the landlord. 2. The Prescribed Authority on 5.1.2015 specifically found that the bona fide need of applicant/respondent/landlord was genuine. The finding vis-a-vis their comparative hardships was also given in favour of the respondent-landlord. 3. The tenants-petitioners went up in appeal and the Appellate Court confirmed the findings of the Prescribed Authority and dismissed the appeal on 27.2.2017. 4. The counsel for the petitioners has essentially assailed the orders on two counts. I. If the notice dated 2.9.2011 is perused, it would be found that it was a composite notice under Section 106 of the Transfer of Property Act and also a notice under the proviso to Section 21(1)(a) of the U.P. Act No. 13 of 1972. This, according to the petitioners, was not in accordance with law. A notice under the proviso to Section 21 (1)(a) of the U.P. Act No. 13 of 1972 had to be a separate notice and it could not be together with the notice under Section 106 of the Transfer of Property Act, 1882. In support of his argument, he has cited Nirbhai Kumar vs. Maya Devi, (2009) 5 SCC 399 and has submitted that a separate notice before the filing of the application under Section 21(1) (a) U.P. Act No. 13 of 1972 had to be given to the petitioner/tenant before the institution of proceedings under Section 21(1)(a) of the U.P. Act No. 13 of 1972. Further, he has submitted that once the landlord files a suit under section 20, then the notice exhausts itself and would not meet the requirements of the proviso to Section 21(1)(a) of the U.P. Act No. 13 of 1972. II. The need of the landlord could have been satisfied if they had got another building of theirs released, the vacancy of which was declared by the City Magistrate, Rent Control Eviction Officer, Kanpur Nagar, on 7.7.2014 and since no release application was filed for the particular accommodation which was earlier under the tenancy of one Sri Ramesh Yadav, the application of the landlords under Section 21(1)(a) was malafidely filed and there was no bona fide need for the specific accommodation in which the petitioners resided. 5. The counsel for the respondents-landlords Sri D.K. Jaiswal, however, submitted that the two notices, one under Section 106 of the Transfer of Property Act and the other under the proviso to Section 21 could co-exist as the notice as is contemplated under the proviso to Section 21(1)(a) U.P. Act No. 13 of 1972 is a notice by the landlord to the tenant for a very specific purpose i.e. to give the tenant a breathing time of six month so that he could either amicably settle the matter or get an alternative accommodation for himself whereas a notice under Section 106 of Transfer of Property Act, 1882, simply brought the relationship of a tenant and a landlord to an end. What is more, he has submitted that if at all there was any defect in the notice, then the same would be deemed to have been waived by the petitioners-tenants as they had not objected to it either in their written statement or in their arguments which they made before the Courts below. They had joined issues on merit, all the time expecting a favourable decision. Having now lost in the two courts below, they have lost all right to point out any defect, whatsoever in the notice. They had joined issues on merit, all the time expecting a favourable decision. Having now lost in the two courts below, they have lost all right to point out any defect, whatsoever in the notice. The counsel for the respondents has relied on a judgment of this Court in Misri Lal vs. 9th Additional District Judge and Others, 1993 (1) AWC 187 wherein this Court held that a composite notice determining the tenancy as is contemplated under Section 106 of the Transfer of Property Act, 1882, and a notice as is contemplated under the proviso to Section 21(1)(a) of the U.P. Act No. 13 of 1972, can always be sent and that after the filing of the suit under Section 20, the notice would not exhaust itself. 6. In reply to the argument of the petitioners that the landlords could have got the accommodation of Sri Ramesh Yadav released after it was declared vacant, learned counsel has submitted that in view of the law laid down in Smt. Sharda Devi vs. Col. Dinesh Chandra and Others, 1976 (UP) RCC 319 the landlord for fulfilling his bona fide need could choose between the various tenanted accommodations, of which he was the landlord. 7. I have heard the learned counsel for the parties and perused the impugned judgments/ orders. Since the case was being decided on a pure question of law as to whether a composite notice under Section 106 of the Transfer of Property Act, 1882, and under the proviso to the Section 21(1)(a) of the U.P. Act No. 13 of 1972 could be sent to the tenant, the respondent chose not to file any counter affidavit. For a proper appreciation of the controversy at hand Section 106 of the Transfer of Property Act, 1882, and Section 20, and 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, may be perused. For convenience, the relevant portions of the three sections are being reproduced here as under:- Section 106 of the Transfer of Property Act, 1882. 106. Duration of certain leases in absence of written contract or local usage. For convenience, the relevant portions of the three sections are being reproduced here as under:- Section 106 of the Transfer of Property Act, 1882. 106. Duration of certain leases in absence of written contract or local usage. - (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A Notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.] Sections 20, 21 of the U.P. Act No. 13 of 1972 20. Bar of suit for eviction of tenant except on specified grounds. Bar of suit for eviction of tenant except on specified grounds. (1) Save as provided in sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner: Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in Court or otherwise reduced to writing and signed by the tenant. (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely: (a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand: Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the Prescribed Authority under the India Soldiers (Litigation) Act, 1925 (Act No. IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words four months in this clause shall be deemed to have been substituted by the words one year. (b) that the tenant has will-fully caused or permitted to be caused substantial damage to the building; (c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it; (d) that the tenant [has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with such use], or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes; (e) that the tenant has sub-let, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building; (f) that the tenant has renounced his character as such or denied the title of the landlord and the letter has not waived his right or re-entry or condoned the conduct of the tenant; (g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord and his employment has ceased. 21. Proceedings for release of building under occupation of tenant. 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 bona fide required either in its existing form 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) that the building is in a dilapidated condition and is required for purposes of demolition and new construction: 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 the 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 bare perusal of the above 3 sections of the two acts makes it abundantly clear that a notice under Section 106 of the Transfer of Property Act, 1882, is sent to bring to an end the relationship of a landlord and a tenant and when a suit is filed under Section 20 after a notice is served under Section 106 of the Transfer of Property Act, 1882, the tenants continue to remain in the tenanted accommodation only as statutory tenants. However, when a notice under the proviso to Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, is sent to a tenant then the tenancy does not come to an end but it is a simple information to the tenant about the intention of the landlord that he requires the property in question and that within six months the tenant could search out a suitable accommodation for himself. Thus, if a composite notice is sent under Section 106 of the Transfer of Property Act, 1882, and under proviso of Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 the notice would not become bad. Still further, if a suit is filed under Section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, after the sending of the composite notice, it does not mean that the notice exhausts itself and that before the filing of the application under Section 21, a fresh notice is not required as the tenant is already well informed of the intention of the landlord. This is the precise purpose of the notice under the proviso to Section 21 of the 1972 Act. 9. Under such circumstances, it is clear that the notice as was sent by the landlord- respondent on 21.9.2011 was not defective. What is more, the petitioners-tenants could not have objected to the notice after they had joined issues with the landlords and the case had continued comfortably in the Courts below. If at all there was any defect, it would be deemed to have been waived. 10. The submission of the petitioner that the need of the landlord was not bona fide in as much as he had not filed any release application for the premises which was declared vacant also does not hold much water. The Supreme Court and this Court have in fact held that to meet his bona fide need a landlord can choose between the various premises of which he is the landlord. 11. In view of the above, no good ground has been made out by the petitioners to interfere with the orders impugned. The petition is, accordingly, dismissed. 12. However, it is hereby provided that the petitioners may vacate the premises on or before 31st October 2017 provided the petitioners submit an undertaking in the Court of the Prescribed Authority by 8th May 2017 that they shall vacate the premises in question and handover vacant and peaceful possession to the landlords-respondents on or before 31st October 2017.