Allahabad High Court
Lakshmi Shankar Mishra vs Smt. Vineeta Richhriya on 19 April, 2017
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 2 Case :- WRIT - A No. - 15086 of 2017 Petitioner :- Lakshmi Shankar Mishra Respondent :- Smt. Vineeta Richhriya Counsel for Petitioner :- Vinod Kumar Mishra Counsel for Respondent :- Murli Dhar Mishra Hon'ble Manoj Misra, J.
Heard learned counsel for the petitioner and Sri M.D. Mishra for the land lady- respondent.
The present petition has been filed seeking quashing of the orders dated 12.5.2016 and 9.3.2017 passed by Prescribed Authority/ Judge Small Causes, Jhansi in Case No. 26 of 2014 and Additional District Judge/ Special Judge, Jhansi in Rent Control Appeal No. 9 of 2016 respectively.
A perusal of the record would reveal that the land lady-respondent had filed application under section 21(1) (a) of U.P. Act No. 13 of 1972 against the tenant-petitioner for release of the accommodation in dispute by claiming that she had been residing with her father-in-law, mother-in-law, jethani and children and the accommodation available with her was not sufficient to meet the need of her family which included her husband and children and therefore the accommodation in dispute was purchased by her, vide sale deed dated 27.1.2011, to fulfill her family's residential requirement. The release application was filed on 22.4.2014 i.e. after expiry of three years from the date of purchase by alleging that a notice was given to the tenant-petitioner disclosing that the accommodation in dispute was purchased by her, which she bona fide required for her personal use, and therefore he may vacate the premises.
The release application was allowed by the trial court and the appeal preferred by the tenant- petitioner against the order of release was dismissed.
Both the courts below have found that the need of the land lady- respondent was bona fide because she was residing with her in-laws, where the accommodation was not sufficient, and therefore the accommodation in dispute was bona fide required by her. On the question of comparative hardship also, both the courts recorded finding in favour of the land lady.
Learned counsel for the petitioner has assailed the impugned orders on the ground that the notice as contemplated by the proviso to sub section (1) of section 21 of U.P. Act No. 13 of 1972 was not given and therefore the release application was not maintainable. A feeble attempt was made to disclose that there was no bona fide need because the land lady had sufficient accommodation at her father-in-law's house.
Inviting attention of the Court to annexure 3 of the petition, which is copy of the notice dated 22.11.2011, learned counsel for the petitioner submitted that a bare perusal of the notice would go to show that it was given for bringing a suit for arrears of rent and eviction. Moreover, the notice does not give six months period to vacate and it only seeks to terminate the tenancy by providing one month time to vacate, therefore, it does not comply with the requirement of the proviso to sub section (1) of section 21 of UP Act No.13 of 1972, which is mandatory.
Sri M.D. Mishra, learned counsel for the respondent- land lady, submitted that the notice as contemplated by the proviso was duly given and both the courts below have examined that aspect of the matter and have found that there was a valid notice and as such the release application was maintainable. It was submitted by him that both the courts below have returned concurrent findings of fact on the question of bona fide need and comparative hardship, which is based on appreciation of evidence on record and therefore the orders passed by the courts below call for no interference.
In respect of validity of the notice, with reference to the provisions of the proviso to sub section (1) of section 21 of the Act, Sri M.D. Mishra submitted that in paragraph 2 of the notice, the land lady had clearly disclosed that the premises in question was required for her own bona fide need and for that purpose she would bring a proceeding in due course of time. It has been submitted that the proviso to sub section (1) of section 21 of U.P. Act No. 13 of 1972 does not provide for giving six months notice. What it requires is that the land lady should give a notice to the tenant not less than six months before filing of application. Meaning thereby that if notice has been given six months before filing an application under section 21 (1) (a) of the Act and the application is filed after 3 years from the date of purchase of the premises there is sufficient compliance of the provisions of the proviso to sub section (1) of Section 21 of the Act. It has been submitted that in the instant case, the land lady had given notice more than six months before filing of application under section 21(1) (a) of U.P. Act No. 13 of 1972 and, in the said notice, she had clearly disclosed that the premises in question was bona fide required by her for which she would bring proceeding in due course of time, as such, there is substantial compliance of the provisions of the proviso to section 21(1)(a) of U.P. Act No. 13 of 1972. It was submitted that since admittedly the release application was filed after three years from the date of purchase of the accommodation, the release application was not hit by the said proviso.
I have given thoughtful consideration to the submission of learned counsel for the parties and have perused the record.
To ascertain whether the notice as contemplated by the proviso to sub section (1) of section 21 of U.P. Act No. 13 of 1972 was given in the instant case or not, it would be useful to first examine the provisions of the proviso to sub section (1) of section 21 of the Act to find out as to what kind of notice is required by the Act.
The relevant extract of Section 21 is 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 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:"
In Nazuk Jahan v. ADJ, (1980) 4 SCC 595, the apex court observed that the notice contemplated by the proviso to Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 cannot be a casual or oral request to the tenant but a formal demand, ordinarily in writing, and clearly insisting on vacant possession after the requisite period.
In Abdul Jabbar V. VIIth ADJ, Gorakhpur, (1989)1 ARC 277, this Court held that the words in the proviso "in that behalf" are of significance. The notice spoken of in the proviso is not merely a notice to the tenant of the factum of the purchase of the property by a subsequent landlord, but the notice has to be in regard to the fact that the purchaser wants to move an application for release under section 21(1)(a) of the Act. The notice contemplated by the proviso is an intimation to the tenant to the effect that the landlord wants to move an application for release in respect of the property which he has purchased.
In Maya Shankar Srivastava v. IVth Additional District Judge, Gorakhpur, (1998) 34 ALR 706, an argument was developed by placing reliance on the observations made in Nazuk Jahan's case (supra) that if the notice does not specifically discloses that after six months period release application would be brought then the same would be bad in law. In that context, this court observed that the observations made by the apex court in Nazuk Jahan's case has to be read in the context of that case because the Apex Court had declined to grant leave and to examine the matter further because the plea about the factum or legality of the notice was not raised in the trial court and also because an undertaking was given to vacate the tenanted accommodation within a specified period. Therefore, the occasion to examine the question in detail as to what particulars are to be clearly specified in the notice did not arise before the Apex Court. Therefore, relying on decision of this court in Misri Lal v. 9th Addl. District Judge, Gorakhpur, (1993) 21 ALR 192, it held that under the proviso to sub section (1) of section 21 there is no specific requirement to give six months notice to vacate. It was held that there would be sufficient compliance if the application is filed after six months of giving of notice disclosing that the landlord requires the premises for his own use.
In Misri Lal's case (supra), this court specifically dealt with a question as to whether in the notice six months time to vacate should be provided or not. Dealing with the said question, this court held as follows:
"The object of the notice is to furnish information to the tenant about the requirement of the landlord in order to enable the tenant to search for an alternative accommodation after receiving the notice. The legislature appears to have thought the period of six months to be sufficient period for this purpose, and it is with this end in view that the competent authority stands prohibited from entertaining the application for release for a period of six months to be counted from the date of the service of the notice, as indicated above. It is therefore, obvious that the non-mentioning of the period of six months in the notice itself could not invalidate the notice. The release application based on such notice, in case, it is filed after the expiry of six months calculated from the date of the service of the same on the tenant, cannot be dismissed as non-maintainable."
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.
In the instant case, a perusal of the notice dated 22.11.2011, which has been brought on record as annexure 3 to the petition, would go to show that the land lady, through her advocate, had informed the petitioner that she had purchased the accommodation in dispute; that the tenant had been in arrears since February 2011; that the land lady requires the accommodation bona fide for her own use for which she will initiate proceeding in accordance with law in due course of time; that the land lady does not wish to continue with the tenancy of the petitioner, therefore the petitioner may hand over possession within 30 days.
After serving the aforesaid notice, the release application was filed on 22.4.2014 that is after six months of the notice.
On the above mentioned facts, this Court is of the view that there has been substantial compliance of the requirement of the proviso to sub section (1) of section 21 of U.P. Act No. 13 of 1972, inasmuch as, the notice gives information to the tenant of the purchase of the building by the purchaser landlady; the notice discloses in clear terms that the accommodation in dispute is bona fide required by the landlady for which she will bring separate legal proceeding; and the release application has been filed six months after the service of notice. The proviso nowhere prohibits giving of a composite notice by including demand for arrears as well as termination of tenancy therefore, for the purpose of drawing proceeding under Section 21(1)(a) of the Act, the notice which otherwise complies with the requirement of the proviso would not be rendered invalid merely because it is a composite notice.
In view of the discussion made above, this Court finds no legal defect in the proceeding under section 21(1)(a) of U.P. Act No. 13 of 1972 on the ground of any alleged defect in the notice.
In so far as the question of bona fide need is concerned, there is no serious challenge to the finding returned by the trial court as well as the appellate court that the accommodation already in possession of the land lady, where she was residing with her family of four members along with her father-in-law, mother-in-law, widowed jethani and her children, was insufficient. The courts below have found that there were only four rooms for that large family and accordingly the need for the premises in dispute was found bona fide. Moreover, this Court is of the view that no one can be forced to live in a joint family when a person has her own accommodation and wants separate living. Under the circumstances, this Court is of the view that the finding returned by the courts below on bona fide need of the land lady requires no interference.
As regards comparative hardship, no submission has been advanced and both the courts below have returned concurrent finding in that regard in favour of the land lady.
Consequently, this Court finds no good reason to interfere with the orders impugned and therefore the prayer of the petitioner to set aside the orders impugned is rejected.
At this stage, learned counsel for the petitioner prayed that some reasonable time may be allowed to the petitioner to vacate the premises.
On the aforesaid request, Sri M.D. Mishra has submitted that this Court may grant some reasonable time to the petitioner to vacate the premises subject to deposit of admitted rent in advance and furnishing of undertaking in respect of vacation of premises upon expiry of the time so provided.
In view of the above, this petition is disposed of by holding that no good ground has been made out to interfere with the orders impugned and therefore the prayer of the petitioner to set aside the impugned orders is hereby rejected. However, the petitioner shall have time up to 30.9.2017 to vacate the premises subject to filing of an undertaking and deposit of entire admitted dues of rent payable up to 30.9.2017 by 15.5.2017 in the court of the Prescribed Authority. The undertaking shall indicate that the petitioner shall handover vacant and peaceful possession of the premises in question to the land lady by 1.10.2017.
It is made clear that if by 15.5.2017 the undertaking as provided herein above is not given and the rent as directed to be deposited is not deposited, the release order shall become executable forthwith. If the undertaking as well as the rent for the period as mentioned herein above is submitted /deposited by 15.5.2017 but the premises is not vacated by 1.10.2017 and peaceful possession thereof is not handed over to the land lady, not only the petitioner shall be liable to be evicted through execution proceeding but it shall also be open to the land lady to draw contempt proceeding against the petitioner.
Order Date :- 19.4.2017 Arvind