Allahabad High Court
Zila Congress Committee, Budaun And ... vs Girish Kumar Juneja on 19 April, 2019
Equivalent citations: AIR 2019 (NOC) 794 (ALL), AIRONLINE 2019 ALL 1138, 2019 (4) ALJ 629, (2019) 136 ALL LR 28, (2019) 5 ALL WC 4332, (2019) 8 ADJ 398 (ALL)
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Case :- WRIT - A No. - 24981 of 2018 Petitioner :- Zila Congress Committee, Budaun And Another Respondent :- Girish Kumar Juneja Counsel for Petitioner :- Shreya Gupta Counsel for Respondent :- Rahul Sahai Hon'ble Mrs. Sunita Agarwal,J.
Heard Ms. Shreya Gupta, learned counsel for the petitioners and Sri Rahul Sahai, learned counsel for the respondent.
The present petition is directed against the judgment and order dated 13.7.2016 passed by the Prescribed Authority/Additional Civil Judge (Senior Division), Budaun in Rent Case No. 5 of 2009 and also the judgment and order dated 31.10.2018 passed by the Additional District and Sessions Judge, Court No. 6, Budaun in Rent Appeal No. 19 of 2016.
By the orders impugned, the release application under Section 21(1)(a) of U.P. Act No. 13 of 1972 (in short as "the Act, 1972") filed by the respondent-landlord had been allowed directing the petitioners to handover vacant possession of the premises in dispute to the release applicant/landlord.
At the outset, learned counsel for the petitioners had urged that the release application was not maintainable, inasmuch as, it was filed in contravention of the First proviso to Section 21(1)(a) of the Act, 1972.
It is contended that the release applicant/landlord had purchased the disputed premises from the original landlord vide sale deed dated 30.5.2005 alongwith the petitioners as sitting tenant. The release application was filed by the purchaser landlord without serving a six months notice as required under the First proviso to Section 21(1)(a) of the Act, 1972. In so far as the assertion in the release application that a notice dated 3.9.2008 purportedly under the First proviso to Section 21(1)(a) of the Act, 1972 was served upon the petitioners by registered post and certificate of posting, the contention is that factum of service of notice had been specifically denied in the written statement filed by the petitioners. The alternative plea taken by the tenant, that the alleged notice was illegal and would not determine the tenancy, would not absolve the burden laid on the landlord to prove the service of notice. The Prescribed Authority had allowed the release application vide judgment and order dated 13.7.2016 ignoring the objection taken by the petitioners with regard to entertainability of the release application. In appeal, the appellate court had dealt with the issue erroneously by misconstruction of the First proviso to Section 21(1)(a) of the Act, 1972 and wrongly held that notice as required thereunder was not needed, inasmuch as, the previous landlord had filed a release application setting up his need of the disputed property. Further, the notice sent by the landlord through U.P.C. has wrongly been held valid, without any evidence being filed by him to prove its service.
The submission is that the requirement of giving six months notice to a sitting tenant as per First proviso to Section 21(1)(a) of the Act, 1972, is mandatory. It was incumbent on the Prescribed Authority to frame an issue on this aspect of the matter, once the tenant had denied the service of notice in the written statement and also challenged the legality and validity thereof.
It is contended that in absence of a valid notice, the release application filed by subsequent landlord could not have been entertained and was liable to be thrown outrightly. The Prescribed Authority had, thus, erred in proceeding on merits of the release application. The appellate court though dealt with the issue but in a wrong perspective.
It is next argued that the denial on the part of the tenant of the service of notice was clear and categorical. The legality of notice has been challenged as an alternative plea. It is permitted to defendant/opposite party to take alternative inconsistent pleadings in the written statement. The assertion in the written statement of the petitioners that no notice was served on him and further that the notice was illegal and his tenancy would not be determined from such notice, cannot be taken to be an admission on the part of the petitioners regarding service of notice. In view of the denial, the burden was on the landlord to file evidence to prove service of notice. The evidence filed by the landlord namely the registered post receipts dated 18.7.2008 (7Ga-1 and 7Ga-2) and U.P.C. receipt dated 3.9.2008 (paper no. 8Ga-1 and 8Ga-2), were not sufficient to prove the service as it was admitted to the landlord that registered post notice was returned back unserved. The notice allegedly served on the petitioners is dated 3.9.2008, which was admittedly sent through U.P.C. It is well settled that no presumption of service of notice can be raised on the basis of certificate of posting unless, the service is proved by the sender. The appellate court had erred in presuming that the notice was duly served upon the petitioners/appellants even though only certificate of posting was filed in evidence by the respondent landlord.
Reliance has been placed on the judgment of the High Court of Madhya Pradesh in Vidya Devi and others vs. Maya Bai and another decided on 5.11.2003 to assert that inconsistent plea taken in the written statement would not amount to admission of factum of service of notice.
Reliance has further been placed on the judgment of this Court in Deep Kumar vs. District Judge, Jhansi and others1 to submit that whenever issue regarding non-compliance of First proviso to Section 21(1)(a) of the Act, 1972 is raised, landlord has to satisfy the Court about its compliance, otherwise, his release application would be liable to be dismissed as not entertainable. It is further contended that the provision being mandatory takes away the jurisdiction of the Court in entertaining landlord's application, if its requirement is not satisfied.
Further reliance has been placed on the judgments of this Court in Abdul Jabbar vs. VII Addl. District Judge and others2 and Bahadur Singh vs. Additional District Judge, Etawah and others3 to assert that notice is a requirement of law for maintaining a release application under Section 21(1)(a) of the Act, 1972 and, therefore, it was incumbent on the landlords to specifically and unequivocally alleged that he had complied with the requirements of the proviso. A vague plea is of no consequence. Moreover, the notice contemplated in the proviso should be specific and eloquently intimate the tenant of the bonafide requirement of the purchaser landlord. The purpose of six months notice provided by the legislature is to give intimation to the tenant of the fact that a release application will be filed by the purchaser landlord so that in the meantime, the tenant may make alternative arrangement for his residence, if he can so make.
Further the judgments of this Court in Rajendra Prasad Gupta and another vs. District Judge and 7 others4 and West Watch Company vs. Additional District Judge, Court No. 5, Lucknow and others5 have been placed before the Court to submit that six months notice was mandatory and as no presumption can be raised on the basis of certificate of posting brought on record by the landlord, the appellate court has erred in holding that the release application was preceded by six months notice.
It is contended that the law laid down by the Apex court in Nirbhai Kumar vs. Maya Devi and others6 has been considered by this Court in Rajendra Prasad Gupta4 to arrive at the conclusion that non-service of six months notice before filing release application under Section 21(1)(a) of the Act, 1972 would be fatal and the release application was rejected therein being not maintainable.
Sri Rahul Sahai, learned Advocate appearing for the learned counsel for the respondent landlord, on the other hand, made two fold submission to defend the orders impugned. His first submission is that there is no necessity of six months prior notice in the event of release application being filed after the period of three years of its purchase.
Heavy emphasis has been given on the judgment of this Court in Anwar Hasan Khan vs. District Judge, Shahjahanpur and others7, which has been affirmed by the Apex Court in Civil Appeal No. 435 of 2000 (Anwar Hasan Khan vs. Mohd. Shafi and others8).
It is contended that subsequent decision of the Apex Court in Nirbhai Kumar6 (supra) holding judgment of the Apex Court in Anwar Hasan Khan's case8 being not a good law and affirming the pronouncement in Martin & Harris Ltd. vs. VIth Additional District Judge & others9 does not have a binding precedence on the question of the requirement of six months prior notice under First proviso to Section 21(1)(a) of the Act, 1972 to maintain a release application by the purchaser landlord.
To press this point, it is contended by the learned counsel for the petitioners that the law of binding precedence as per Article 141 of the Constitution of India is that a proposition of law, which is a point in issue and has been directly addressed, having been specifically dealt in the answer, would be a binding precedence. Any verdict where observations are made by the Court in reaching at its conclusion in the factual background of the case, at best would be Obiter Dicta, which does not have any precedential value. An Obiter Dicta is something said by a judge in the context of the dispute, which has no binding authority.
The submission is that the point in issue in Martin & Harris Ltd.9 was not with regard to the requirement of notice to maintain release application.
Placing the judgment in Martin & Harris Ltd.9, it is contended that they were only two issues before the Apex Court. (i) issue no. 1 was as to whether the release application under Section 21(1)(a) of the Act was not maintainable in view of the proviso to the said section as it was filed before expiry of three years from the date of purchase of the suit premises by the respondent. (ii) the second issue whether the release application was not maintainable on the ground that it was filed prior to the expiry of six months from the date on which notice was given by the landlord as required by the said proviso. The third issue was on the merits i.e. with regard to bonafide requirement of the landlord.
Placing the issues that had arisen for consideration in Martin & Harris Ltd.9, it is contended that facts of the said case was that the release application was filed within the period of prohibition of three years and that too prior to expiry of six months from the date of notice. In the light of the said facts in that case, it was held by the Apex Court that as the release application was entertained/adjudicated by the Prescribed Authority after three years of the purchase, mere fact that it was filed/instituted prior to expiry of the said period would not be a ground to reject it being not maintainable.
As far as the question of notice, it was held therein that the requirements of notice was waived by the tenant as he did not raise any objection at the first opportunity i.e. in the written statement.
The observations of the Apex Court in paragraph no. "12-A" of the Martin & Harris Ltd.9 that the provision for six months notice before initiation of proceeding under Section 21(1)(a) of the Act, 1972 is mandatory, cannot be said to be an opinion expressed by the Apex Court on the dispute or specific issue raised before it. The observation that the notice under First proviso to Section 21(1)(a) is to give six months breathing time to the tenant after service of notice to enable him to put his house in order to get an alternative accommodation is a type of protection to the tenant, cannot be treated as a ratio of the judgment to hold that six months notice is mandatory to maintain release application filed, after expiry of three years from the date of purchase.
The submission is that this Court in Anwar Hasan Khan7 having exhaustively dealt with the purpose and object of the aforesaid provision and also considering the judgment of Apex Court in Martin & Harris Ltd.9, had held in paragraph '43' that six months notice is not dependent upon expiry of three years period. In other words, under this proviso, a landlord can file release application notwithstanding expiry of three years from purchase of the building provided six months notice period has expired. No six months notice under first proviso to Section 21(1)(a) of the Act, 1972 is required in a case where "three years have elapsed since the purchase of the building". The six notice is required only in a case where a landlord had purchased a building with the sitting tenant on or after 15th July, 1972 and wants his release application to be allowed on immediate expiry of three years under Section 21(1)(a) of the Act, 1972. The release application, thus, can be filed by the landlord under Section 21(1)(a) of the Act, 1972, after purchase, provided it is preceded by six months notice, even before expiry of three years.
Submission is that the reasoning given by the High Court in Anwar Hasan Khan7 to reach at this conclusion is based on the exhaustive scrutiny of the statutory provision [First proviso to Section 21(1)(a)] by applying the rules of statutory interpretation of enactment in the light of the object of the said enactment. The said reasoning in the judgment of the High Court has not been merged in the order of the Apex court in Anwar Hasan Khan8, which has been decided on a different point. It is contended that though the judgment of the High Court in Anwar Hasan Khan7 has been affirmed by the Apex Court in the judgment passed on 10th October, 2001, but the aforesaid reasoning given by the High Court to arrive at its conclusion would not merge in the judgment of the Apex Court. The reversion of the law laid down in Anwar Hasan Khan8 by the Apex Court in Nirbhai Kumar6 would have the effect of reversion of the reasoning given by the High Court in Anwar Hasan Khan7 for arriving at its own conclusion.
With the affirmation of the judgment of the High Court in the Apex Court judgment in Anwar Hasan Khan8, though the operative part of the order of High Court stood merged in the decision of the Apex Court, but the remaining part of the order of the High Court cannot be said to have been merged in the judgment of the Supreme Court in the said case, which has been held to be no longer a good law in Nirbhai Kumar6. The statement of law as contained in the judgment of the High Court in Anwar Hasan Khan7 would, therefore, continue to remain the decision of the High Court binding as a precedence on subsequent benches of coordinate bench or benches of lesser strength, though it may be open to reconsideration by bench of the same court with the higher coram.
Reliance is placed on the judgment of the Apex Court in S. Shanmugavel Nadar vs. State of Tamil Nadu and another10 and of this Court in M.D. Pakshimanchal Vidut Vitran Nigam Ltd. vs. Ombudsman, 3rd Floor, Needa Building, Vibhuti Khand, Gomti Nagar, Lucknow11 to submit that the doctrine of merger as stated therein will come to the rescue of the purchaser landlord in a case where the release application was filed much after expiry of three years of the purchase of the disputed premise and that there was no requirement of six months notice.
It is contended that in the instant case, even the period of six months from the date of notice had expired prior to filing of the release application, which is not disputed by the petitioners.
The second limb of arguments is that the specific assertion regarding the notice having been sent to the tenant has been made in paragraph '9' of the release application. The reply of the tenant/petitioners in paragraph '19' of the written statement is, however, vague. The vague denial on the part of the tenant would amount to his admission.
The Order 8 Rule 3 CPC requires that the defendant must deal specifically with each allegation of fact, stated in the plaint, of which he does not admit the truth. Rule 5 provides that every allegation of fact in the plaint, if not denied in the written statement, shall be taken to be admitted by the defendant. The rule is that where a defendant denies allegation of fact in the plaint, he must not do so evasively but has to clearly answer the points of substance. If the reply is evasive and the statement made in the plaint have not been specifically disputed in the written statement, the assertions in the plaint would be deemed to have been admitted as the admission in the pleading is the best proof of the facts admitted. There would be no requirement of the assertions in the plaint by leading further evidence.
Reliance is placed on the judgment of this Court in Syed Mustajab Husain, Mutwalli Masjid Dhuliaganj Waqf No. 23, Agra vs. Additional District Judge, Agra and others12 and of the Apex Court in Lohia Properties (P) Ltd. Tinsukia, Dibrugarh, Assam vs. Atmaram Kumar13.
Submission is that from the assertion of the tenant in the written statement, it is evident that specific pleading in the plaint that notice dated 3.9.2008 was sent through registered post and certificate of posting was not, specifically denied. The denial that no notice was received by the defendant being vague and evasive, not to the points of substance pleaded in the plaint, would have to be taken to be his admission of service of notice sent on 3.9.2008. No further proof was necessary in the said circumstance. It must, therefore, be held that requirement of giving six months notice prior to filing of the release application under Section 21(1)(a) of the Act, 1972, had been fulfilled by the respondent-landlord.
On both counts, thus, the challenge to the order of the Prescribed Authority and appellate authority, has to be repelled.
In rejoinder, it is vehemently contended by learned Advocate for the petitioners that the assertion in the written statement that no notice was received by the respondent cannot be said to be a bald statement which would amount to admission of the respondent regarding the factum of service. The sentence in ^^;g fd izkFkhZ dk dksbZ uksfVl foi{khx.k dks izkIr ugha gqvk gSA^^ is a specific denial of service of notice as asserted in paragraph '9' of the release application.
The certificate of posting filed by the landlord was not sufficient proof of service as no presumption of actual service upon the tenant could be drawn. The landlord was required to bring the evidence to prove that the notice dated 3.9.2008 was actually served on the tenant and the release application was filed after expiry of period of six months from the date of service. In absence of proof of service, the release application could not have been entertained by the Prescribed Authority.
Having heard learned counsel for the parties and perused the record, the first question which is to be answered by this Court is, as to whether the six months notice as stated in First proviso to Section 21(1)(a) of the Act, 1972 is mandatory or the requirement of the notice can be dispensed with in a case, where the release application is filed by the subsequent purchaser landlord against the sitting tenant, after three years of the date of purchase.
This issue had fell for consideration before this Court and the Apex Court from time and again. There are series of conflicting opinion on the issue as to whether six months notice under proviso to Section 21(1)(a) of the Act is mandatory and whether the Court can insist requirement of such a notice, even in a case where embargo of three years period provided has elapsed. It is being pressed again and again that where the release application is filed after a period of three years from the date of purchase, there is no requirement of six months notice and the court cannot insist the landlord to give notice or would not reject the release application filed prior to expiry of the said period.
The decision of the Apex Court in Anwar Hasan Khan8 has been pressed into service to assert that the period contemplated for not initiating eviction proceedings against the tenant on the ground as specified in clause (a) of sub-section (1) of Section 21 of the Act, 1972, was intended to be for a period of three years and in no case it can be said to be more than three years and six months. Any proceeding instituted or initiated for release of building under occupation of tenant after the period contemplated under the aforesaid proviso does not require service of notice of six months.
This issue has also been dealt with by me in Rajendra Prasad Gupta4 in a judgment delivered on 12th January, 2016.
Considering the law laid down in Martin & Harris Ltd.9, Anwar Hasan Khan8, Nirbhai Kumar6, it was held therein that where the release application is filed by a purchaser landlord against the sitting tenant, it has to be preceded by a six months notice. The notice is mandatory even after expiry of three years from the date and purchase and the tenant would be entitled to contest on the maintainability of the release application on this ground. However, if the ground of maintainability has not been taken at the first instance, the tenant would not be allowed to plead the same at a later stage. In case such an objection is taken at a later stage, it would be considered to have been waived and the matter shall proceed on merits.
The same issue in the present matter, has been presented by the counsel for the respondent-landlord from a different angle. The submission is that the only basis of the legal position pronounced in Rajendra Prasad Gupta4 is that the Anwar Hasan Khan's case8 has been held to be a bad law in Nirbhai Kumar6 wherein the requirement of six months notice has been insisted by the Apex Court considering the decision in Martin & Harris Ltd.9. The submission is that decision in Martin & Harris Ltd.9 was in the facts of that case, the issue whether the notice under First proviso to Section 21(1)(a) of the Act, 1972 is mandatory was neither raised nor considered. The statement of law on the said issue in Martin & Harris Ltd.9, therefore, cannot be said to be ratio of the case being a binding precedence under Article 141 of the Constitution of India. This Court is bound by the reasoning given by the previous decision of the coordinate Bench in Anwar Hasan Khan7, as the reasoning therein, as aforesaid, had not been merged in the judgment of affirmation of the Apex Court in Anwar Hasan Khan8.
Submission is that the controversy with regard to the requirement of six months notice, even after the expiry of three years from the date of purchase, has to be considered in the light of law laid down by this Court in Anwar Hasan Khan7 in its decision rendered on 3rd December, 1999. Being a coordinate Bench, it would not be possible for this court to take a different view. This aspect of the matter had neither been raised nor considered in Rajendra Prasad Gupta4. The decision therein, therefore, would not be an aid to the petitioners to insist the requirement of notice. Moreover, in case of any difficulty, this Court may refer the matter to a larger Bench.
To answer this issue raised, the pronouncements on the principles of binding precedence of law declared by the Supreme Court under Article 141 of the Constitution and in the light of the doctrine of merger have to be analyzed.
The doctrine of merger has been held to have limited application. It is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by an inferior authority and the other by a superior authority passed in an appeal or revision, there is a fusion or merger of the two orders, irrespective of the subject matter of the appeal or revisional court jurisdiction and the scope of the appeal or revision contemplated by the principal statute. Thus, the legal position is that the application of the doctrine depends on the nature of the appeal or revisional jurisdiction in each case and the scope of the statutory provision conferring the appeal or revisional jurisdiction.
In Kunhayammed & others vs. State of Kerala & another14, it has further been held that the object underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject matter at a given point of time. When a decree or order passed by an inferior Court, Tribunal or Authority is subjected to a remedy available under law before a superior forum, then, though the decree or order under challenge continues to be effective and binding, nevertheless, its finality is to put in jeopardy. Once the superior court has disposed of the dispute before it either way, whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree of the superior Court, Tribunal or Authority, which is the final, binding and operative decree or order wherein merges decree or order passed by the court, tribunal or the Authority. Having said so, the Apex Court had proceeded to examine the exercise of jurisdiction conferred on it by Article 136 of the Constitution of India, to state as under:-
"43. ......xxxxxxxxx........(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
(iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a revew petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C."
The aforesaid principle has been reiterated with approval in S. Shanmugavel Nadar10.
In that case, the constitutional validity of the Madras City Tenants' Protection (Amendment) Act, 1994 which came into force w.e.f. 11th January, 1996 was challenged before the High Court. When the matter came up for hearing before the Division Bench of the Madras High Court, it was argued that at earlier point of time, the State Legislature had enacted the Madras City Tenants' Protection (Amendment) Act, 1960, whereby certain amendments were enacted in the Madras City Tenants' Protection Act, 1921 (Act No. 13 of 1960). The constitutional validity of the Act No. 13 of 1960 was challenged and was up held . The Special Leave Petition filed before the Apex Court against the Division Bench judgment had been dismissed on 10.9.1986 by the Apex court. The Apex Court had held therein that the said objections have to be examined in the light of Article 141 of the Constitution of India and not by applying the doctrine of merger. Article 141 speaks of declaration of law by the Supreme Court. For a declaration of law, there should be a speech i.e. speaking order. It is the speech expressed or necessarily implied which only is the declaration of law by the Apex Court within the meaning of Article 141 of the Constitution.
In the facts of that case, it was found that the Apex Court had dismissed the Special Leave Petition on two grounds firstly, that in a petition putting in issue the constitutional validity of the state legislation, the State is a necessary party and in its absence, the issue cannot be gone into and; secondly that a belated prayer for impleading a necessary party cannot be allowed at the given distance of time. It was, thus, held that the reasoning or view of law contained in the decision of the Division Bench of the High Court cannot be said to have been merged in the order of the Apex Court in such sense as to amount to declaration of law under Article 141 by the Apex Court or that the order of the Apex court had affirmed the statement of law contained in the decision of the High Court. It was, thus, concluded as under:-
"17. We are clearly of the opinion that in spite of the dismissal of the appeals on 10.9.1986 by this Court on the ground of non-joinder of necessary party, though the operative part of the order of the Division Bench stood merged in the decision of this Court, the remaining part of the order of Division Bench of the High Court cannot be said to have merged in the order of this Court dated 10.9.1986 nor did the order of this Court make any declaration of law within the meaning of Article 141 of the Constitution either expressly or by necessary implication. The statement of law as contained in the Division Bench decision of the High Court in M. Varadaraja Pillai's case would therefore continue to remain the decision of the High Court, binding as a precedent on subsequent benches of coordinate or lesser strength but open to reconsideration by any bench of the same High Court with a coram of judges more than two."
The Full Bench of the Madras High Court before whom the matter was laid for decision on a reference by another Division Bench raising doubt about the aforesaid Division Bench decision was directed to adjudicate upon the issue arising before it, as the issue was found not adjudicated by the Apex Court so as to give effect of binding law under Article 141 of the Constitution.
Following the said principles, a Full Bench of this Court adjudicated the reference laid before it in Paresh Yadav and others vs. State of U.P. and others15 by holding that the summary dismissal of Special Leave Petition against a judgment of Division Bench of this Court will not result in merger of the order passed by this Court as regards the statement of law or the reasons indicated in the judgment.
The Full Bench in paragraph '35' concluded as under:-
"35. This is, indeed, a well settled principle of law. Once a decision of the High Court is set aside by the Supreme Court, the decision of the High Court ceases to exist and it is not open to urge that a particular submission was not considered by the Supreme Court. The issue in this case is, however, distinct. The issue in the present case is, whether on a plain reading of the judgment of the Supreme Court dated 4 September 2013, can it be held that the statement of law or the reasons which were contained in the judgment of the Division Bench of this Court in Subhash Chandra Kushwaha had merged in the decision of the Supreme Court. For the reasons which we have indicated, the answer is in the negative."
In the light of the principles of binding precedence and judicial supremacy as laid down under Article 141 of the Constitution, as aforesaid, both the decisions in Anwar Hasan Khan7 of the High Court and that of Apex Court in Anwar Hasan Khan8 are to be examined.
The specific question which fell for examination before the High Court in Anwar Hasan Khan7 was with regard to the interpretation of the First proviso to Section 21(1)(a) of the Act, i.e. whether the notice under said proviso is necessarily required to maintain the release application by purchaser landlord, after three years of purchase. The stand of the landlord was that six months prior notice was not required, inasmuch as, the release application was filed after three years from purchase. The contention of the tenant petitioners, however, was that both the conditions of expiry of three years since the date of purchase and of giving six months notice to the tenant must be satisfied before a release application was filed by the purchaser landlord, who had, after commencement of the Act, purchased the building with sitting tenant. The High Court had answered this question, having examined the object for incorporation of first proviso to Section 21(1) of the Act and its scope and meaning and having considered the law laid down by the Apex Court in Martin & Harris Ltd.9 to hold as under---
"Under First Proviso to Section 21 (1) fa) of the Act, I hold no six months notice is required in a case where 'three years' have elapsed since the purchase of a building. Six months' notice is required only in a case where a landlord has purchased a building with tenant on and after 15th July. 1972 (i.e., the commencement of the Act) and wants his release application to be allowed on immediate expiry of three years under Section 21 (1) (a) of the Act. Release Application under the proviso can be filed any time after "the purchase" but it must precede by six months' notice. It is, however, open to a tenant to waive 'objection' on the ground of notice being inadequate (being short of six months) and such an objection, being waived, this deficiency will not vitiate release proceedings or render the order of the Prescribed Authority a nullity."
It would be pertinent to note here that the said conclusion drawn by the High Court had preceded with the observations in paragraph nos. '20' to '26' as under:-
"20. The Legislature provided three years general bar or in the alternative required '6 months notice' to the tenant to arrange his affairs. Such logical approach in adopting interpretation-fulfills the object, avoids inconsistency and provides sound meaning to the proviso. It shall also discourage frivolous transfers and avoid release application being filed on 'forged' grounds aimed to frustrate the solemn object of the Act, (namely oppression of 'tenants').
21. It may be noted that first proviso qualifies cases of release covered under Section 21 (1) (a) of the Act (which did not otherwise require six months notice). This proviso even permits filing of release application (on grounds covered under Section 21 (1) (a) of the Act). The only restriction imposed is that it can not be "entertained" (i.e. allowed) before expiry of three years from the date of purchase.
22. This shows that Legislature never intended that a landlord, who has bona fide purchased a 'building with tenant' without intention to camouflage the Act and bona Jide required release of his accommodation, should be kept at bay unnecessarily.
23. The intention of the Legislature is clear that no release application could be entertained (precisely to say-'allowed') after the Act commenced within three years of the purchase of a building if there is a sitting tenant. The Legislature could not be expected to exclude a 'bona fide' landlord through purchase from being considered for release for three years. The Legislature, therefore, provided an exception to the above 'embargo' of 'three years' by providing that a 'bona Jide landlord through purchase' could make an application for release by giving six months' notice.
24. Reading of the proviso in this manner avoids anomalies, which, one may comprehend.
25. Considering the language used in the 'First proviso' and keeping in mind the object for providing the said proviso, one fails to find any good reason for attaching the condition of six months notice even after three years period after purchase, as suggested by the petitioner's counsel. There could possibly be no object for providing such an obligation on the landlord.
26. In the Instant case, the building was purchased when father of the petitioner was tenant. Release application has been filed after about 15 years of the purchase in question and when original purchaser had even died long back. The question of frustrating the object of the Act, in the above facts, cannot be conceived at all."
When the decision of High Court was challenged before the Apex court by the tenant petitioner therein, the Leave to Appeal was granted, and Special Leave Petition was converted into a Civil Appeal and was decided on merits.
The question posed to itself by the Apex Court was as to the correctness of the statement of law by the High Court with regard to the requirement of notice in terms of First proviso to Section 21(1)(a) of the Act, 1972 to maintain the release application by the purchaser landlord. While affirming the judgment of the High Court, it was held by the Apex Court in paragraph no. '9' as under:-
"9. Keeping in mind the object of the Act to provide safeguards to the tenant, the first proviso to Section 21 of the Act was added to ensure that the unscrupulous litigants do not transfer properties only for the purposes of creating grounds for eviction of the tenant in occupation thereof. The aforesaid proviso, however, was not intended to put any restriction upon the owners of the property not to transfer it under any circumstances. To ensure that the sale transaction was valid and not malafide, a statutory bar was created vide aforesaid proviso for the transferee to seek the eviction of the tenant with respect to such purchased property.
The proviso mandates that no application shall be entertained by the Prescribed Authority on the grounds mentioned in clause (a) of sub-section (1) of Section 21 of the Act unless a period of three years had elapsed since the date of such purchase. It further provides that no application under the said clause shall be entertained unless the landlord had given a notice to the tenant not less than six months before the filing of such application and such notice may be given even before the expiration of a period of three years. The object of the service of the 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 scale made by his erstwhile owner was a genuine and bonafide or not. The proviso and the notice contemplated under it was never intended to be permanent clog on 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 sub-section (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 aforesaid notice of six months."
The statement of law on the object and requirement of notice under the First proviso to Section 21(1)(a) of the Act, 1972 declared by the High Court, had, thus, been affirmed by the two judges bench of the Apex Court by giving its own reasoning to further hold that the period contemplated for not initiating eviction against the tenant on the ground as specified in Section 21(1)(a) was intended to be for a period of three years and cannot be more than three and six months. Any proceeding initiated for release of building under occupation of tenant on the aforesaid ground after the period contemplated under the aforesaid proviso, does not require service of notice of six months.
This statement of law in Anwar Hasan Khan (supra) has fell for consideration before a three judge Bench of the Apex Court and in a subsequent decision in Nirbhai Kumar6, it was held that the statement of law in Anwar Hasan Khan8, case is not a good law and the previous decision in Martin & Harris Ltd.9 had expressed the correct view that the notice of six months under First proviso to Section 21(1)(a) is mandatory.
The statement of law in paragraph '6' of Nirbhai Kumar6 is clear and categorical statement that three years period is relevant in a case where there is a change of ownership. The said period has been provided with an intention to protect the sitting tenant from eviction by the landlord, who was not original owner or who has not let out the building to the tenant. The said statement of law is binding under Article 141 of the Constitution of India.
The observation made by the Division Bench in the case of Janki Prasad Hanuman Prasad vs. Pt. Harish Chandra Tewari and another16 as noted in Anwar Hasan Khan7 by the High Court, that, in case, the purchaser landlord is allowed to evict the tenant who is occupying the premises for a pretty long time, immediately after the purchase, the object of the Rent Control and Eviction Act to a very great extent is frustrated. As in such eventuality, the original owner will get a right to evict a tenant by transferring the property though he may not have requirement of the premises let out by him for his personal use, therefore, becomes relevant.
This aspect of the matter has been considered in Martin & Harris Ltd.9, while answering the question no. 2 arose for consideration, which was with regard to the maintainability of release application prior to expiry of six months from the date on which the notice was given to the tenant under First proviso to Section 21(1)(a) of the Act, 1972. The object of notice as stated in paragraph '12-A' of Martin & Harris Ltd.9 has been noted in Nirbhai Kumar6, relevant extract of which is to be reproduced as under:-
"....xxxxxx........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."
As far as the requirement of six months notice after the date of purchase in terms of First proviso to Section 21(1)(a), the Apex Court in Martin & Harris Ltd.9 is clear and categorical that such a notice is mandatory.
It has, however, been held that the release application can be filed or instituted even prior to expiry of three years period, after giving six months notice by the purchaser landlord and the word "entertain" in the proviso has no relevance to a stage prior to the stage of consideration for decision on merits of the release application. In case of adjudication by the Prescribed Authority after expiry of period of three years from the date of purchase, the order passed by it cannot be said to be nullity on the plea of bar or rider in the aforesaid process.
It is further explained that the notice though mandatory but the provision being personal right of the tenant, the principle of waiver would get attracted. The tenant, if does not take objection to the entertainability of the release application before the Court of first instance, shall not be allowed to raise such an objection at a later stage, as an afterthought. The tenant cannot be permitted to raise objection regarding the release application being pre-mature or having been filed before expiry of six months from the date of notice.
From a careful reading of the law stated by the Apex court in a series of decision in Martin & Harris Ltd.9, Anwar Hasan Khan8, Nirbhai Kumar6, legal position as emerges can be summarized as under:-
(1) The law laid down in Martin & Harris Ltd.9 has been affirmed by the Apex Court in Nirbhai Kumar6 holding it a good law. Whereas the view taken by the Apex Court in Anwar Hasan Khan8 that there was no requirement of six months notice after three years of purchase has been held to be a bad law.
(2) The first proviso of Section 21(1)(a) of the Act, 1972 is aimed to protect a sitting tenant from unscrupulous landlords who had sold the premises with the sole view to evict the tenant.
(3) It is mandatory for a purchaser landlord to give six months notice to the tenant to clearly state his intention to file release application in future so as to give breathing time to tenant to get an alternative accommodation, if the tenant apprehends his eviction.
(4) The release application by purchaser landlord though, can be filed or instituted even before expiry of three years from the date of purchase after expiry of period of six months from the date of notice of his intention to get the premises released in future on the grounds specified in Section 21(1)(a) of the Act, but the release application cannot be entertained or adjudicated prior to expiry of three years as the said period is the statutory protection given to the tenant from eviction.
(5). The protection granted to the tenant under the First proviso being personal right of the tenant can be said to have been waived, if the tenant did not raise any objection as to the entertainability of the release application in absence of six months notice or having been filed prior to expiry of the period of six months, at the first opportunity.
Thus, in case, the tenant did not raise any objection as to the maintainability of the release application in the written statement, the Prescribed Authority which is the Court of first instance would not entertain objection as to the maintainability of the release application on the said ground.
The reason being that in case, the tenant would have raised such an objection at the first opportunity, the landlord would be at liberty to withdraw the release application and file a fresh by giving six months notice or presenting the same application after expiry of period of six months from the date of a valid notice.
(6) Thus, both the requirements in the first proviso of protection period of three years and of six months notice, in the matter of a release application being filed by the purchaser landlord are mandatory requirements of law and have to be insisted by the Court when a release application is filed by the purchaser landlord against the sitting tenant i.e. who occupies a building prior to the said purchase.
In view of the above discussion, the submission of learned counsel for the respondent that the law laid down by the Apex court in Nirbhai Kumar6 would not be a statement of law as a binding precedence under Article 141 of the Constitution of India and the reasoning given by the coordinate bench of this Court in Anwar Hasan Khan7 are binding on this Bench, is found misconceived.
The decision of the High Court in Anwar Hasan Khan7 with regard to the statement of law as to the requirement of six months notice under the first proviso to Section 21(1)(a), has been merged in the decision of the Apex Court in Civil Appeal against the said judgment.
The subsequent three judges Benches of the Supreme Court has held the said statement of law as bad law. The legal position as stated in Nirbhai Kumar6 is binding on this Court both from the point of doctrine of merger and principle of binding precedence under Article 141 of the Constitution of India.
The notice of six months before maintaining the release application, therefore, is held mandatory.
Having said so, in the facts of the present case, it is found that the release application has been filed by the purchaser landlord much after the expiry of period of three years with the categorical statement in paragraph '9' of the release application that the notice had been sent to the tenant through registered post and certificate of posting by his Advocate on 3.9.2008 and the tenant had refused to vacate the tenament, thereafter.
This assertion though has been denied in paragraph '19' of the written statement by the tenant by saying that no notice was received by him but there is no categorical assertion that notice had not been received either by registered post or by certificate of posting. Further, the order of the Prescribed Authority indicates that the issue of service of notice was not taken further and was not raised before it during the course of arguments and, as such, it had not been adjudicated the same while allowing the release application vide judgment and order dated 13.7.2016 passed by the Prescribed Authority.
A further perusal of the memo of appeal filed under Section 22 of U.P. Act No. 13 of 1972 (page '73' of the paper book) indicates that no objection had been raised therein as to the service of notice, as categorically asserted in the release application. Various grounds have been raised to challenge the decision of the Prescribed Authority, but it has nowhere been stated that the Prescribed Authority did not adjudicate the issue of service of notice despite being pressed nor it has been said therein that the notice had not been served on the tenant prior to filing of the release application. The ground no. '30' in the grounds of appeal which may have some relation with the issue raised herein reads as under:-
"30. Because no legal notice was ever served on the then president of the congress committee."
In the light of the said fact, it can be safely concluded that the tenant did not press the issue of maintainability of the release application on the plea that it did not receive any notice as mandated under the proviso to Section 21(1)(a) of the Act, 1972 prior to filing of the release application.
Moreover, the respondent landlord had adduced evidence by filing certificate of posting dated 3.9.2008 before the Prescribed Authority. As the tenant had given up this point before the Prescribed Authority and did not take it further, there was, thus, no occasion for the respondent landlord to lead evidence to prove service of notice sent through certificate of posting on 3.9.2008. The adjudication on the merits of the release application by the Prescribed Authority, therefore, cannot be said to suffer from any error of law.
The observations made by the appellate court on the merits of the notice on the assertions made during the course of hearing of the appeal are nothing but passing observations. The observations of the appellate court in holding that there was no requirement of notice as the original landlord had filed the release application earlier making his intention clear to get the premises released for his personal use being based on wrong appreciation of law, would not make the decision of affirmation of the order of Prescribed Authority, bad in law. As aforesaid, this Court having reached at the conclusion that the mandatory notice of six months as per First Proviso to Section 21(1)(a) was given by the landlord prior to filing of the release application and that there was no dispute about the fact that the release application had been filed after expiry of period of six months from the date of notice, the release application cannot be thrown at the threshold on the ground of entertainability or maintainability.
Lastly, in a feeble submission, it is contended by the learned counsel for the respondent landlord that the landlord does not require the premises for his personal use, inasmuch as, he possess alternative accommodation which was purchased by him through twelve (12) different sale dates. Some of the sale deeds were brought on record of the appellate court but had been ignored.
However, nothing has been brought on record as to whether a vacant alternative accommodation was available to the landlord on the date of filing of the release application or any such accommodation had been occupied by him at a later stage.
Learned counsel for the petitioners-tenant, on the other hand, submits that the fact as to the availability of the alternative accommodation being in personal knowledge of the landlord, he was under obligation to disclose the said fact before the Court that too once the tenant had made the said disclosure by filing his own affidavit.
The said assertion of learned counsel for the petitioners is wholly misconceived, inasmuch as, the burden is on the tenant to prove by leading positive evidence that the landlord possessed alternative accommodation in vacant state either at the time of filing of the release application or he had acquired any accommodation during pendency of the proceeding. No negative evidence can be adduced. The plea of alternative accommodation in vacant state being available to the landlord so as to frustrate his personal need with regard to the premises-in-question, therefore, is found devoid of force.
No other point has been pressed.
For the above discussion, from all angles, no infirmity can be found in the decision of the courts below in allowing the release application on the ground of personal need and bonafide requirement of the landlord after considering the comparative hardship of the tenant viz-a-viz landlord.
Lastly, in view of the prayer of the learned counsel for the petitioners that the tenant may be given a reasonable time to vacate the premises in dispute, the following directions are being given:-
(1) The petitioners-tenant shall file an affidavit in the form of undertaking that he would vacate the premises in dispute after expiry of period of six months i.e. on or before 19th October, 2019, before the Prescribed Authority, within a period of three weeks alongwith certified copy of this judgment.
(2) In case, such an undertaking is furnished, the petitioners-tenant shall not be evicted from the premises in question till the period given in the said undertaking expires, however, he shall continue to pay rent regularly for the period of occupation.
(3) In the event of default on the part of the petitioners/tenant in furnishing the aforesaid undertaking or in vacating the premises in dispute within the time given above, the protection granted to the tenant would stand vacated and it would be open for the respondent-landlord to get the premises released by adopting the procedure prescribed under law.
Subject to the above observations and directions, the present petition is dismissed.
Order Date :- 19.4.2019
Brijesh (Sunita Agarwal, J.)