Allahabad High Court
Suresh Chand Rastogi vs Ix Additional District Judge, Kanpur ... on 21 February, 2000
Equivalent citations: 2000(2)AWC1192, 2000 ALL. L. J. 1269, 2000 A I H C 3129, (2000) 2 RENCR 397, (2000) 2 ALL WC 1192, (2000) 39 ALL LR 6, 2000 ALL CJ 2 1302, (2001) 1 RENCJ 145, (2000) 1 ALL RENTCAS 429
JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order of the Prescribed Authority dated 10.1.1997 releasing the disputed accommodation in favour of the landlord-respondent No. 3 and the order of the appellate authority dated 18.1.2000 affirming the said order in appeal.
2. Briefly, stated the facts, are that respondent No. 3 and other persons purchased the house in question by a registered sale deed on 16.3.1985. The petitioner was the tenant of three rooms on third floor and one room on the first floor of the house in question. Respondent No. 3 gave a notice on 7.4.1987 to the petitioner under the first proviso to Section 21 (1) (a) of U. P. Act No. 13 of 1972 (in short the Act) that he needs the disputed accommodation for residential purposes. All the purchasers of the property had filed an application under Section 21 (1) (a) of the Act with the allegations that considering the members of the family of the respondent No. 3, the accommodation with them for residential purpose was insufficient. He stated that his family consisted of himself, his wife and two sons, one son was married and the other son was of marriageable age. This application was contested by the petitioner. He denied that the landlord bona Jide needed the disputed accommodation. He was already residing in the same premises on the third floor and first floor and taking into account the number of members, he does not require any additional accommodation. One of the pleas was that the application under Section 21 (1) (a) of the Act was not maintainable as the notice under the first proviso to Section 21 (1) (a) of the Act was given by one of the co-landlords, namely, respondent No. 3 and unless the notice was given by all the landlords or sent on their behalf, it will be invalid under the said proviso.
3. The Prescribed Authority recorded a finding that the need of the landlord-respondent No. 3 was bona fide. It was further held that the application under Section 21 (1) (a) of the Act was maintainable even if it was given by one of the co-landlords and secondly during the pendency of the case on a suit being filed in the civil court, respondent No. 3 was declared as sole owner of the property in question. The petitioner preferred an appeal and the appeal has been dismissed by the respondent No. 1 on 18.1.2000. These orders have been challenged in the present writ petition.
4. Sri V. K. Barman, learned counsel for the petitioner submitted that the notice under the first proviso to Section 21 (1) (a) of the Act for release of an accommodation after purchase of the property by the landlords, must be given by all of them. The word 'landlord' includes all the landlords who were owners of the property and to whom the rent was payable under law.
5. The landlord is to give a notice to the tenant under the first proviso intimating him that he requires the disputed accommodation on the ground mentioned in clause (a) of Section 21 of the Act and such notice must be given six months before filing the application. The first proviso to Section 21 (1) (a) of the Act imposes restrictions on filing of the application, firstly, that the period of three years has elapsed since the date of purchase and secondly, the notice is given to the tenant not less than six months before filing application. The form of the notice has not been prescribed under the said proviso. In Smt. Nazuk Jahan and others v. Additional District Judge and others 1981 ARC 530, it was held that the notice contemplated by the proviso to Section 21 of the Act 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.
6. In an application under Section 21 (1) (a) of the Act, the need can be set up for one of the landlords though all the co-landlords join in the application. There is no reason that the notice be given by all the co-landlords intimating to the tenant the one of the co-landlords requires that accommodation for his personal need.
7. The purpose of the notice under Section 106 of the Transfer of Property Act is different from the purpose of the notice which is given under the first proviso to Section 21 of the Act. The tenancy of a tenant is to be determined by all the co-landlords but the notice under the first proviso is not given for termination of the tenancy. It is not necessary to terminate the tenancy of a tenant before filing application under Section 21 (1) (a) of the Act. The tenancy automatically stands terminated under sub-section (6) of Section 21 of the Act when an application for release is allowed by the Prescribed Authority under Section 21 (1) (a) of the Act. Subsection (6) of Section 21 of the Act itself provides that on expiration of a period of thirty days from an order under sub-section (1) or sub-section (1A) or sub-section (2), the tenancy of the tenant shall stand determined In its entirety, as the case may be. in respect of any part. In the present case the application under Section 21 (1) (a) of the Act has been filed by all the co-landlords.
8. In view of the above, the notice given by respondent No. 3 under the said proviso, was valid and the application under Section 21 (1) (a) of the Act was maintainable. Secondly during the pendency of the application, he has been declared as sole landlord in Suit No. 1098 of 1993.
9. Learned counsel for the petitioner assailed the findings of both the authorities in regard to the bona finde need of the landlord. It is contended that the landlord has sufficient accommodation In the house in question itself. The authorities below have considered the need of the landlord keeping in view his family members and other relevant factors. It is based on assessment of evidence and I do not find any legal infirmity in the finding.
10. In view of the above, the writ petition is dismissed.
11. In the end, learned counsel for the petitioner prayed that some time may be granted to the petitioner to vacate the disputed premises. Considering the facts and circumstances of the case, the petitioner is granted six months' time to vacate the disputed premises provided he gives an undertaking on affidavit before the Prescribed Authority within three weeks from today that he will vacate the disputed premises within the time granted by this Court and would hand over its peaceful possession to the landlord-respondent No. 3.