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2020 DIGILAW 494 (ALL)

Shamshul Hasan v. Saleem Khan

2020-02-13

SARAL SRIVASTAVA

body2020
JUDGMENT : Saral Srivastava, J. 1. Heard learned Counsel for the petitioner and Sri Prateek Sinha, Advocate holding brief of Sri Siya Ram Verma, learned Counsel for the respondent. 2. Petitioner is a tenant of Aahata No. 565 Quarter No. 3 (565/3), Rail Bazar, Meerpur Cantt., Kanpur Nagar (hereinafter referred to as 'suit property') at ` 60/- per month. The petitioner has assailed the judgment and order dated 14.12.2017 passed by Prescribed Authority /Civil Judge (Senior Division), Kanpur Nagar allowing the release application instituted by respondent Nos. 1 and 2 registered as Rent Case No. 16 of 2013 (Saleem Khan and another v. Shamshul Hasan) and order dated 6.9.2019 passed by Additional District Judge, Court No. 12, Kanpur Nagar dismissing the Rent Appeal No. 4 of 2018. 3. The respondent Nos. 1 and 2 being owner and landlord of the suit property filed an application under section 21 (1)(a) of U.P. Act No. 13 of 1972 for release of the suit property. It is stated in the release application that the respondents have purchased the suit property from its erstwhile owner Smt. Akeela Jamal by registered sale-deed dated 23.6.2010. It is further averred that family of respondents/landlord is big, details of which have been stated in paragraph 5 of the release application, therefore, suit property is needed for their personal use and occupation. It is also stated in the release application that notice has been sent to the petitioner-tenant for vacating the suit property. The said notice was replied by the petitioner-tenant on 24.7.2012. 4. In the aforesaid case, petitioner-tenant filed objections. Besides taking other plea, petitioner-tenant stated in paragraph 23 of the objection that the release application is barred by the proviso to section 21 (1)(a) of U.P. Act No. 13 of 1972 as six months mandatory notice has not been given to the petitioner by the respondents-landlord which is mandatory requirement for filing release application by the landlord as the petitioner is the tenant of the suit property since before its purchase by the respondents-landlord. 5. On the basis of aforesaid pleadings, the Prescribed Authority framed three issues. The issue No. 1 was as to whether notice given by the respondent-landlord was valid; issue No. 2 as to whether there was any relationship of landlord and tenant between the parties; issue Nos. 3 and 4 in respect of bona fide need and comparative hardship. 6. 5. On the basis of aforesaid pleadings, the Prescribed Authority framed three issues. The issue No. 1 was as to whether notice given by the respondent-landlord was valid; issue No. 2 as to whether there was any relationship of landlord and tenant between the parties; issue Nos. 3 and 4 in respect of bona fide need and comparative hardship. 6. On the issue No. 1 the Prescribed Authority held that notice was given on 10.7.2012 and six months notice period has elapsed before filing the release application, therefore, requirement of proviso to section 21(1)(a) of U.P. Act No. 13 of 1972 is fulfilled and release application is maintainable. The Trial Court after appreciating the evidence and material on record decided the issue of bona fide need and comparative hardship in favour of respondent-landlord. 7. The petitioner-tenant, thereafter, preferred Rent Appeal No. 4 of 2018 under section 22 of U.P. Act No. 13 of 1972 which was also dismissed by the Additional District Judge, Court No. 12, Kanpur Nagar by judgment and order dated 6.9.2019 whereby he has affirmed the finding of Prescribed Authority. 8. Challenging the aforesaid orders, learned Counsel for the petitioner has contended that notice dated 10.7.2012, copy of which is annexed as Annexure-1 to the writ petition, does not meet the requirement of proviso to section 21(1)(a) of U.P. Act No. 13 of 1972 inasmuch as the said notice does not state the fact that respondents-landlord want release of the suit property for their personal use and for which they would initiate legal proceedings. In support of his submission, he has placed reliance upon the judgment of this Court in the case of Lakshmi Shankar Mishra v. Smt. Vineeta Richhriya, 2017 (123) ALR 385 and also in the case of Abdul Jabbar v. VIIth AD], Gorakhpur. 1989 (15) ALR 50 9. The submission is that the Court below while returning the finding on issue No. 1 against the petitioner has failed to consider this relevant aspect of the matter, and as notice dated 10.7.2012 was invalid, therefore, mandatory requirement of notice as contemplated in proviso to section 21(1)(a) of U.P. Act No. 13 of 1972 has not been complied with, therefore, the release application was not maintainable. He further contends that finding of Prescribed Authority on the issue of bona fide need is also not correct inasmuch as respondents-landlord have got released one house adjacent to the suit property and some portion of that house has been demolished by the landlord, therefore, need set up by the landlord-respondents is not genuine and bona fide. 10. Per contra, learned Counsel for the respondents-landlord contends that objection raised by the petitioner that notice does not state the fact that respondents-landlord need the suit property for their personal use has been waived by the petitioner inasmuch as no such case has been set up by the petitioner in his written statement. He submits that the only objection which has been raised by the petitioner in the written statement was that six months mandatory notice has not been given, and thus, in view of the said fact, the finding returned by the Court below on issue No. 1 that release application is not barred by proviso to section 21 (1)(a) of U.P. Act No. 13 of 1972 is correct and based upon proper appreciation of evidence and material on record. In support of his aforesaid submission, he has placed reliance upon the judgment of this Court in Writ-A No. 72134 of 2010 (Anoop Kumar and others v. Doongermal Singodiya and another) and Writ-A No. 12289 of 2019 (Pradeep Kumar @ Pradeep and another v. Smt. Meena Devi Sahu and another). 11. On the issue of bona fide need, he contends that finding of the Courts below is a finding of fact as the same has been recorded after appreciating the evidence and material on record and as the petitioner has failed to point out any perversity in the finding of Courts below, this Court may not interfere with the findings of Courts below in exercise of supervisory jurisdiction under Article 227 of Constitution of India on the issue of bona fide need and comparative hardship. 12. I have considered the rival submissions of the parties and perused the record. 13. Before adverting to the first submission of learned Counsel for the petitioner as to whether notice dated 10.7.2012 meets requirement of a valid notice contemplated under the proviso to section 21 (1)(a) of U.P. Act No. 13 of 1972, it would be relevant to refer the judgment of Lakshmi Shankar Mishra (supra) relied upon by the learned Counsel for the petitioner. This Court after noticing the various pronouncements of this Court has laid down as to what a notice should contain in order to meet the requirement of substantial compliance of proviso to section 21 (1) (a) of U.P. Act No. 13 of 1972. Paragraph 16 of the said judgment is extracted hereinbelow: "16. A careful reading of the statutory provision and the object it seeks to achieve, when seen in the light of the aforesaid decisions, leads the Court to irresistible conclusion that for substantial compliance of the requirement of the proviso to sub-section (1) of section 21 of the Act, the purchaser landlord must: (a) give a written notice to the tenant about purchase of the building; (b) the notice must indicate that the building is bona fide required either in its existing form or after demolition and new construction for occupation by himself or any member of his family in which connection he would bring proceeding; and (c) the application under section 21(1)(a) should be filed after six months of the service of notice. The provision does not require that the notice must by itself provide six months time to vacate. What it needs to do is to inform the tenant that the accommodation is required by the landlord for the purpose enumerated in Clause (a) of sub-section (1) of section 21 of the Act in which connection he intends to bring proceeding. The proviso does not prohibit issuance of a composite notice which seeks arrears of rent as well as terminate tenancy in addition to giving information of purchase and the bona fide requirement of the purchaser landlord as well as intention to bring proceeding in that behalf. Therefore even a composite notice seeking to terminate the tenancy upon expiry of one month's period coupled with information to the tenant about the purchase and purchaser landlord's requirement for the premises with intent to bring proceeding in that behalf would not render the proceeding drawn under section 21(1)(a) bad. Because the purpose of the notice stands achieved once sufficient information is given to the tenant that the premises in question has been purchased and the same is bona fide required for the use and occupation of the landlord or his family members and that in due course proceeding would be drawn in that behalf." 14. Because the purpose of the notice stands achieved once sufficient information is given to the tenant that the premises in question has been purchased and the same is bona fide required for the use and occupation of the landlord or his family members and that in due course proceeding would be drawn in that behalf." 14. In the case of Abdul Jabbar (supra), this Court has held the notice to be invalid on the ground that such notice did not state the intention of the landlord that he wants the property for his personal use for which he would file an application for release against the petitioner under section 21(1)(a) of U.P. Act No. 13 of 1972. Paragraph 14 of the judgment is extracted hereinbelow: "14. I have examined the notice, which has been annexed as Annexure-4 to this petition. The property as stated above, was purchased on 6th October, 1975. This notice was given on 9th February, 1976. This notice does not state at all as to any intention on part of the landlord to file an application for release against the petitioner under section 21(1)(a) of the Act nor does it ask the petitioner to vacate the premises but it is only a notice intimating the petitioner that the landlord has purchased the property by a sale-deed, dated 6th October, 1975. In the circumstances, clearly, this notice cannot be construed to be a notice under the proviso to section 21(1)(a) of the Act. There is no sufficient compliance of the mandatory requirement of law." 15. It is explicit from the aforesaid two judgments that for a notice to be valid and to meet the substantial requirement of compliance of proviso to section 21(1)(a) of U.P. Act No. 13 of 1972, a notice must indicate clear intendment of the landlord that he wants the property for his personal need and for release of which he may file an application under section 21(1)(a) of U.P. Act No. 13 of 1972. 16. In the light of above principles laid down by this Court, it is to be seen that the notice of landlord in the present case meets the requirement of a valid notice. 16. In the light of above principles laid down by this Court, it is to be seen that the notice of landlord in the present case meets the requirement of a valid notice. It is manifest from the notice that it does not state that the suit property is bone fide required for the personal use of the landlord or any member of the family and the application under section 21(1) of the U.P. Act No. 13 of 1972 shall be filed after the expiry of six months of the notice. 17. Learned Counsel for the respondents-landlord also could not point out from the notice that the notice recites any fact wherefrom it can be inferred that the landlord wants suit property for his personal use and occupation, and for release of suit property, he may file release application under section 21(1) (a) of U.P. Act No. 13 of 1972. Thus, in view of the law laid down by this Court in the case of Lakshmi Shankar Mishra (supra) and Abdul Jabbar (supra), this Court finds that the notice in the present case does not meet the requirement of a valid notice. 18. Now, the Court proceed to consider the judgments relied upon by the learned Counsel for the respondents. This Court in the case of Pradeep Kumar @ Pradeep (supra) has held that tenant may waive protection provided to him under the first proviso to section 21(1) of the U.P. Act 1972 and if the tenant has waived such protection, the release application is maintainable. The proposition of law as has been laid down by this Court in the aforesaid case is not applicable in the present case as it is not the case of respondent-landlord that tenant has waived the protection available to him under the proviso to section 21(1)(a) of U.P. Act No. 13 of 1972. 19. In the case of Anoop Kumar (supra) this Court found that defendants have not raised any objection that the release application is barred by the proviso to section 21(1)(a) of U.P. Act No. 13 of 1972, and accordingly, it held that release application is maintainable as the defendants have waived the protection available to them under the proviso to section 21(1)(a) of U.P. Act No. 13 of 1972. 20. 20. Thus, in view of the foregoing discussion, this Court finds that both the Courts below have acted illegally in holding that the notice of termination of tenancy is a valid notice and release application is not barred by the proviso to section 21(1)(a) of U.P. Act No. 13 of 1972. 21. Since, this Court has held that release application is barred by the proviso to section 21 (1)(a) of U.P. Act No. 13 of 1972, therefore, in the facts of the present case, the other contention advanced by learned Counsel for the parties are not dealt with. 22. For the reasons given above, both the orders impugned are set aside. The writ petition is allowed with no order as to costs.