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Allahabad High Court · body

2018 DIGILAW 859 (ALL)

NIRMAL KUMAR SAHU v. MOHD. RAFIQ

2018-04-10

SANGEETA CHANDRA

body2018
JUDGMENT : Mrs. Sangeeta Chandra, J. This application under Article 227 of the Constitution has been filed by the tenant challenging the order dated 6.10.2016 passed by the Prescribed Authority/Additional Chief Judicial Magistrate, Court No. 9, Allahabad in P.A. Case No. 18 of 2008 and the order dated 5.3.2018 passed by the learned Additional District Judge, Court No. 14, Allahabad rejecting the Rent Control Appeal No. 4 of 2016. 2. I have heard the learned counsel for the petitioner and Sri Adarsh Bhushan, who appears for the respondents. 3. Learned counsel for the petitioner/tenant has argued before this Court that the disputed property was built in 1918 and he was the sitting tenant of the ground floor where he used the premises partly for running cycle repair shop and partly for residential purposes. 4. The respondent landlord purchased the property in 1986 and sent a notice thereafter to vacate the premises in question on 30.7.1986. Since, this notice was issued just after three months of purchase of the property in question and it gave only one month's notice to the tenant to vacate the premises, it was not in accordance with the first proviso to Section 21(1)(a) of the U.P. Act, 13 of 1072. It was therefore ignored. 5. After twenty two years of issuance of such notice, the landlord filed an application for release under Section 21 showing personal need for the house in question and thereafter an application was registered as P.A. Case No. 18 of 2008. The petitioner submitted his written statements/objections taking a specific plea that the application was not maintainable due to violation of first proviso to Section 21(1). Issue was framed by the learned Court below, the Prescribed Authority also with regard to whether the release application was maintainable, but it has relied upon case law, viz. Martin and Harris Ltd. v. Additional District Judge 1998 (1) SCC 732 to reject the petitioner's objection. 6. The learned Courts below having placed reliance upon a judgment that was not applicable to the facts of the case have given a wrong finding in favour of the landlord regarding the maintainability of the release application. 7. Martin and Harris Ltd. v. Additional District Judge 1998 (1) SCC 732 to reject the petitioner's objection. 6. The learned Courts below having placed reliance upon a judgment that was not applicable to the facts of the case have given a wrong finding in favour of the landlord regarding the maintainability of the release application. 7. With regard to Martin and Harris (supra), it has been submitted that the same related to a case where a notice was issued before expiry of two years period from the date of purchase of the house by the landlord to the sitting tenant, but after the suit was instituted for eviction, sufficient time expired before it was finally considered on merits. 8. The Supreme Court had observed that the provisions of six months notice before initiation of proceedings under Section 21(1) of the Act, is only for the protection of the tenant and sufficient time had expired and this three years period is a sort of a moratorium intended for the tenant's protection. 9. The Hon'ble Supreme Court laid emphasis on the language of the proviso which also said that "such notice may be given even before the expiration of the aforesaid period of three years" and the Supreme Court held that in other words, "notice can be given either before or after the three years period". After expiry of three years period, the protection given to the tenant from being evicted has no further relevance -------". 10. The language of the Act has been read out before this Court by the learned counsel for the petitioner and he insisted that a notice that was issued in 1986 could not have been relied upon to institute a suit in 2008, as such a notice would be deemed to have been abandoned or waived after twelve years period expired. As per the Limitation Act twelve years is the maximum period for institution of a suit from the date of accurence of the cause of action. 11. Learned counsel for the petitioner has therefore submitted that the observations of the learned Court below that the notice given by the landlord twenty two years ago was sufficient time and was insufficient compliance of the proviso to Section 21(1) of the Act and therefore the suit would be maintainable is misconceived and liable to be rejected. 12. 11. Learned counsel for the petitioner has therefore submitted that the observations of the learned Court below that the notice given by the landlord twenty two years ago was sufficient time and was insufficient compliance of the proviso to Section 21(1) of the Act and therefore the suit would be maintainable is misconceived and liable to be rejected. 12. Sri Adarsh Bhushan, learned counsel for the respondents on the other hand has pointed out that the judgment rendered in Martin and Harris (supra) was referred to a larger Bench on some apparent contradiction found with the observations of a two judge decisions rendred in Anwar Hasan Khan v. Md. Shafi & others 2001 SC 2984. A three Judge Bench considered the issue referred in Nirbhai Kumar v. Maya Devi & others 2009 (5) SCC 399 and has affirmed the view taken by the Supreme Court Division Bench in Martin and Harris and has observed that the object of 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 or bonafide or not. The proviso and the notice contemplated under it was never intended to be a permanent clog to the rights of the purchaser. The period contemplated for not initiating the eviction against the tenant on the ground as specified in clause (a) of subsection 1 of Section 21 of the Act was intended to be for a period of three years and in no case for more than three years and six months. Any proceedings initiated for release of building under occupation of tenant on the aforesaid ground after the period contemplated under the aforesaid proviso does not require the service of the aforesaid notice of six months. 13. The Hon'ble Supreme Court's observation made in Nirbhai Kumar (supra) has been relied upon by the learned counsel for the respondents to state that the tenant had sufficient opportunity to search for alternative accommodation. Infact the tenant had indeed made a provision for himself and his family buying two flats one at Saleh Nagar, Allahabad and the other at Sonia Nagar, Allahabad. Infact the tenant had indeed made a provision for himself and his family buying two flats one at Saleh Nagar, Allahabad and the other at Sonia Nagar, Allahabad. These flats were not brought on record in the written statement by the tenant where he failed to disclose the existence of such property and also made a specific statement that he owned no other property in which he could shift his family and business. Later on, in the application, for taking on record additional evidence brought the landlord placed evidence before the learned Courts below that the petitioner was in possession of the aforesaid two properties. The petitioner stated that the Saleh Nagar flat was in possession of one Mahendra Kumar with whom he was fighting as regular Civil Suit for eviction and with regard to house in Sonia Nagar, situated at Noorullah Road, there is no such colony as Sonia Nagar registered in Nagar Nigam, Allahabad. 14. Thereafter, an amendment application was moved to amend the written statement which was rejected by the learned Appellate Court below on 22.11.2017 and against the order passed by the Appellate Court, the tenant approached this Court by filing matter under Article 227 no. 8 of 2018, which was dismissed by this Court on 4.1.2018 with an observation that the petitioner/tenant had filed the petition apparently as an attempt to abuse the process of Court and to defeat the effect of an order dated 21.9.2017 passed in matter filed under Article 227 number 5754 of 2017 preferred by the tenant himself, wherein this Court had observed that instead of Rs. 5,000/- per month as directed by the learned Court, the petitioner/tenant shall be allowed to pay Rs. 1,000/- per month and the learned Appellate Court below shall decide the Rent Control Appeal No. 4 of 2016 within a period of three months from the date of presentation of certified copy of this Court, without granting unnecessary adjournment to either of the parties. 15. This Court dismissed the second petition preferred under Article 227 of the Constitution on 4.1.2018 with a further direction that the Appellate Court may decide the Appeal in accordance with law within a period of six weeks from the date of passing of the order passed by this Court, without granting unnecessary adjournment to either of the parties. 16. 15. This Court dismissed the second petition preferred under Article 227 of the Constitution on 4.1.2018 with a further direction that the Appellate Court may decide the Appeal in accordance with law within a period of six weeks from the date of passing of the order passed by this Court, without granting unnecessary adjournment to either of the parties. 16. Learned Appellate Court after the matter was expedited as above has considered the submissions of the learned counsel for the appellant and has found from evidence on record that the tenant had resorted to deliberate concealment of material facts and misrepresentation, he had concealed material fact of ownership of two flats at Saleh Nagar, Allahabad and Sonia Nagar, Allahabad and he had resorted to misrepresentation stating that there is no such colony registered/recognised by the Nagar Nigam, Allahabad by the name of Sonia Nagar, Allahabad. 17. Learned Appellate Court has found that in the application for registration of the flat in his name at Saleh Nagar, the petitioner had mentioned that he was resident of Sonia Nagar, Allahabad, and had also filed evidence, like Income Certificate and Cast Certificate issued to himself and his wife on the aforesaid address of Sonia Nagar. 18. Having considered the argument raised by the learned counsel for the petitioner and the learned Counsel for the respondents, this Court finds that in the language of Section 21(1), although the maximum period of three years has been prescribed for initiation of proceedings by the subsequent purchaser against the sitting tenant of the property, there is no maximum period prescribed for institution of such eviction proceedings. The petitioner no doubt had sufficient notice that the property in question had been purchased by the landlord and that he needed the said property to house part of his large family of thirty four members. No good ground to show any interference under Article 227 is made out. 19. Learned counsel for the petitioner at this stage has prayed for sometime to be granted for him to vacate the premises in question. This Court does not find any good ground to give any time at all to the petitioner looking to his conduct before the learned Court below, and the fact that the petitioner has been enjoying the property in question for the past several years. This Court does not find any good ground to give any time at all to the petitioner looking to his conduct before the learned Court below, and the fact that the petitioner has been enjoying the property in question for the past several years. However, one month's time starting from today is granted to the petitioner to vacate the premises in question. 20. The writ petition is dismissed. No order as to costs.