Allahabad High Court
Rajesh Kumar vs Special Judge E.C.Act. Sitapur And Ors. on 28 January, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:5771 Court No. - 7 Case :- WRIT - A No. - 1000126 of 2014 Petitioner :- Rajesh Kumar Respondent :- Special Judge E.C.Act. Sitapur And Ors. Counsel for Petitioner :- Ravi Nath Tilhari,Aftab Ahmad,Lalit Shukla,Shiv Nath Tilhari Counsel for Respondent :- U.N.Misra,Akhilesh Kalra,Sanjay Shukla Hon'ble Pankaj Bhatia,J.
1. Heard learned Counsel for the petitioner as well as Ms. Sataxi Shukla and Sri Saksham Chopra holding brief of Sri Akhilesh Kalra, learned Counsel appearing on behalf of respondent-landlord.
2. The present petition has been filed challenging the release order dated 30.05.2014 passed by the Prescribed Authority in P.A. Case No.7 of 2010 allowing the release application filed by the respondent-landlord as well as the order dated 15.11.201 passed in Rent Control Appeal No.2 of 2014, whereby, the appeal was dismissed.
3. The facts in brief are that the petitioner is the tenant of a shop situate at Mohalla Tamsenganj City, District Sitapur. The said property was owned by one Vishnu Narain Mehrotra. It is stated that the said landlord had initiated eviction proceedings against the petitioner under the provisions of U.P. Act No.13 of 1972 [Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972], which came to be rejected and the appeal preferred by the landlord was also dismissed. The said order of dismissal of appeal was challenged in writ petition, however, during the pendency of the said case, the shop in question was purchased by the respondent no.3 and she became the owner of the shop in question. It appears from the record that subsequently, the writ petition arising out of the earlier proceedings came to be dismissed on 23.09.2005. The respondent no.3 issued notice to the petitioner requiring him to vacate the shop in question, which was required for her bona fide need by serving a notice on 30.08.2010 and thereafter, release application was filed on 17.09.2010 under Section 21 (1)(a) of the U.P. Act No.13 of 1972. The said case was registered as P.A. No.7 of 2010. It also appears from the record that after the shop in question was purchased by the respondent no.3 on 15.06.2005, a suit for mandatory injunction was filed by the petitioner apprehending that he may be evicted except in accordance with law. After the service of the notice, the application in question being P.A. No.7 of 2010 filed on 17.09.2010 and a notice thereof was served upon the petitioner who put in appearance and gave a reply. The said release application came to be allowed on 30.05.2014 holding that need setup by the landlord was genuine and bona fide, and on the issue of comparative hardship also, the prescribed authority decided the matter against the tenant. Specific plea was raised by the petitioner in his additional ground that as the application was filed before the expiry of six months notice, the same was in violation of the proviso to Section 21(1)(a) and thus the application was liable to be dismissed. The prescribed authority negating the said contention held that the requirement of six months is under Section 20 (1)(b) and not under Section 21(1)(a). The release application came to be allowed by means of the order dated 30.05.2014. The petitioner preferred an appeal being Rent Control Appeal No.2 of 2014. The said appeal was heard on 15.11.2014 and came to be dismissed affirming the finding recorded by the prescribed authority. The appellate court dealing with the submission of the petitioner in respect of non-grant of notice in terms of the proviso to Section 21(1)(a), repealed the submission on the ground that the petitioner was aware of the purchase of the property. Reference to the Suit No.126 of 2005 was also given. The other argument with regard to bona fide need, the appellate court rejected the submission of the petitioner and affirmed the finding of the prescribed authority.
4. Assailing the said two orders, the Counsel for the petitioner argues that in terms of the provisions contained under Section 21(1)(a) and the proviso to said section, it is mandatory that after the purchase of the property, the period of 3 years should elapse and the landlord has to give a notice to the tenant not less than six months before such application and such notice may be given even before the expiry of aforesaid period of three years. He argues that it is mandatory requirement of law under the proviso that a notice be served six months prior to from the date of filing of the application under Section 21(1)(a) which according to the petitioner has admittedly not been done. Reliance is placed upon the judgment of the Hon'ble Supreme Court in the case of Martin and Harris Ltd. vs VIth Additional District Judge and others; AIR 1998 SC 492, wherein, the Hon'ble Supreme Court had the occasion to deal with the proviso to Section 21(1)(a) and held as under:
"11. So far as this point is concerned it must be held on the clear language of the first proviso to Section 21(1) of the Act that application for possession under Section 21(1) (a) had to be filed by the landlord concerned not earlier than expiry of six months from, the date of issuance of the notice by the landlord. On the facts of the present case it cannot be disputed that when the notice was issued on 20th September 1985 the application for possession could not have been filed by the respondent invoking the grounds mentioned in clause (a) of Section 21(1) of the Act, at leas till 20th March 1986, while the application was filed in January 1986. To that extent it can cannot be disputed that when the notice was issued on 20th September, 1985 the application for possession could not have been filed by the respondent invoking the grounds mentioned in clause (a) of Section 21 (1) of the Act At least till 20th March, 1986 while the application was filed in January, 1986 . To that extent it can be said that the application was premature. The provision in this connection has to be treated to be mandatory."
5. The Counsel for the petitioner further places reliance to the judgment in the case of Nirbhai Kumar vs Maya Devi and others; (2009) 5 SCC 399, wherein, the Hon'ble Supreme Court took notice of the judgment of Martin and Harris (Supra) and also notice another case being Anwar Hasan Khan vs Mohd. Shafi; (2001) 8 SCC 540, wherein, the Hon'ble Supreme Court agreed with the view taken in Martin and Hariss (Supra) and in para 4 recorded as under:
"4. Section 21(1) of the Act so far as relevant reads as follows:
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 eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exist, namely-
(a)-(b) * * * 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."
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. It is to be noted that the crucial expression in the proviso is "and such notice may be given even before the expiration of the aforesaid period of three years". In other words 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."
6. The Counsel for the petitioner also places reliance upon the judgment of this Court in the case of Deep Kumar vs District Judge, Jhansi and others; 2012 SCC OnLine All 3802, wherein, this Court had noticed the judgment of Martin and Harris (Supra) and held as under:
"17. Be that as it may, this Court has no manner of doubt that whenever issue regarding non-compliance of Provision to section 21 (1) (a) is raised, landlord has to satisfy the Court about its compliance otherwise his application under Section 21(1) (a) itself would be liable to be dismissed as not entertainable. The provision is mandatory and takes away the jurisdiction of the Court in entertaining landlord's application if its requirement is not satisfied."
7. In the light of the aforesaid arguments, the Counsel for the petitioner submits that the writ petition deserves to be allowed. No other point has been argued by the Counsel for the petitioner.
8. The Counsel for the respondent strongly opposes the submissions made by the Counsel for the petitioner and argues that admittedly after the purchase of property, a suit was filed by the tenant and an apprehension expressed that the petitioner may be evicted by the new landlord except in accordance with law, thus, he had full knowledge of the factum of purchase of property. She further argues that once the petitioner was aware of the purchase of property, the plea taken and being argued before this Court became redundant as the intent and purpose of the proviso is that the tenant should not be taken by surprise. She lastly argues that the writ petition be dismissed.
9. In the light of the said submissions recorded above, it is essential to note the provisions of Section 21(1)(a) and its proviso of U.P. Act No.13 of 1972, which reads as under:
"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 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:
Provided further that if any application under clause (a) is made in respect of any building left out exclusively for non-residential purposes, the prescribed authority while making the order of eviction shall, after considering all relevant facts of the case, award against the landlord to the tenant an amount not exceeding two years rent as compensation and may, subject to rules, impose such other conditions as it thinks fit:
Provided also that no application under clause (a) shall be entertained -
(i) for the purposes of a charitable trust, the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, castes or place of birth;
(ii) in the case of any residential building, for occupation for business purposes;
(iii) in the case of any residential building, against any tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act No.4 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 against his heirs:
Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed.
Explanation-- In the case of a residential building :
(i) where the tenant or any member of his family [who has been normally residing with or is wholly dependent on him] has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained;
Note-- For the purposes of this clause a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee.
(ii) ***
(iii) where the landlord of any building is -
(1) a serving or retired Indian Soldier as defined in the Indian Soldiers) litigation, Act, 1925 (Act No.4 of 1925) and such building was let out at any time before his retirement; or (2) a widow of such a soldier and such building was let out at any time before the retirement or death of her husband, whichever, occurred earlier;
and such landlord needs such building for occupation by himself or the members of his family for residential purposes, then his representation that he needs the building for residential purposes for himself or the members of his family shall be deemed sufficient for the purposes of clause (a) and where such landlord owns more than one building this provision shall apply in respect of one building only.
(iv) ***"
10. The said proviso came for interpretation before Hon'ble the Supreme Court in the case of Martin and Harris (Supra), wherein the Hon'ble Supreme Court held that the said proviso and the condition prescribed are mandatory, however, it also notice that the provisions was enacted for the benefit and protection of the tenant and the tenant had right to waive it. The Hon'ble Supreme Court did not accept the contention of the tenant on account of deemed waiver. It is also recorded that 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 amicably settled or to get alternative accommodation. Similar view was expressed by the Hon'ble Supreme Court in the case of Nirbhai Kumar (Supra), wherein interpreting the proviso to Section 21(1)(a), it has been recorded that three years period is a sort of moratorium intended for the tenant's protection.
11. The issue with regard to the interpretation of a provision, which is similar to the proviso to Section 21 (1)(a) came up for consideration in the context of the landlord tenant disputes in the case of Ravi Khandelwal vs Taluka Stores; (2023) 7 SCC 720, wherein, the Hon'ble Supreme Court held as under:
"15. In order to analyse the expression used in Section 14(3) of the said Act, we think it is appropriate to consider the objective of this provision. This provision is for the protection of a tenant. The objective is that from the date a tenant acquires a right, he must have a right to continue in the premises for a period of five years, subject to his fulfilment of the terms and conditions of the lease.
16. When we turn to the facts of the present case, what stares us in the face is that while the suit may have been defectively instituted within five years of the tenancy, more than 38 years have now elapsed since the suit was filed. We opine that this passage of time beyond the period of five years would wash away the initial impediment against the suit. We cannot lose sight of the fact that we stare at a factual scenario where the vagaries of litigation have prolonged the suit proceedings for a period of 38 years. The plea of the respondent is that the appellant should be asked to file a fresh suit -- perhaps their confidence stems from the fact that if the tenant has already been able to prolong the proceedings for 38 years, a similar scenario would again follow. We are not able to countenance such an interpretation which would defeat the very purpose of creating an initial restriction on the filing of the suit. To say that the landlord should now, once again, restart the proceedings because the initial period of five years had not elapsed, even as now 38 years have elapsed, would be a travesty of justice.
17. Whether the expression used is "shall lie" or "be entertained" would really make no difference. The objective is to create an impediment in the institution and trial of the suit for a period specified under the said Act. We are in agreement with the view adopted in B. Banerjee case [B. Banerjee v. Anita Pan, (1975) 1 SCC 166] that the spirit of protection is fulfilled with the passage of the prescribed time period, and the filing of a fresh suit would lead to unnecessary multiplicity of litigation. No doubt B. Banerjee case [B. Banerjee v. Anita Pan, (1975) 1 SCC 166] dealt with the constitutional validity of a retrospective amendment and whether the bar could be applied to pending litigation, but that itself would not dilute its ratio.
18. We are thus of the view that the objective of Section 14(3) of the said Act, being the safeguarding of the tenant for five years, was subserved by the proceedings going on for the requisite period of time and beyond it within which the tenant could not have been evicted. As noticed, in fact the proceedings have gone on for 38 years, which itself is extraordinary."
12. It is no doubt true that although the provisions is mandatory, however, keeping in view the intent of the said proviso and keeping in view the fact of the present case, it is clear that the tenant had adequate notice of the respondent having purchased the property. The application was filed after five years of purchase of the property.
13. Keeping in view the intent of the parties and the knowledge that the respondent had purchased the property, it cannot be said that the petitioner was not aware of the purchase of the property and thus, had more than reasonable time to search alternative accommodation, which has not been done. Thus, the contention of the Counsel for the petitioner to that extent needs to be repealed and is accordingly rejected. The other two findings with regard to prima facie case and the comparative hardship, as both are based upon the finding of fact and no argument has been raised before this Court on that count, requires no interference.
14. The writ petition lacks merit and is dismissed.
Order Date:28.1.2025
akverma (Pankaj Bhatia,J.)