The first proviso to section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 requires a formal demand, ordinarily in writing, clearly insisting on vacant possession after the requisite period.

S.D.Agarwala

1. This is a petition under Article 226 of the Constitution of India arising out of proceedings under section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter referred to as the Act).

2. The property in dispute is premises no. 101 situate in Askarganj, city of Gorakhpur. The petitioner, Abdul Jabbar is the tenant. Respondent no. 3 Firoz Alam Lari, is the landlord.

On 6th October, 1975, the property in dispute was purchased by Firoz Alam Lari, the present landlord from the erstwhile owner. After purchasing the property, an application was filed under section 21 of the Act on 31st August, 1979. In this application, it was alleged that the landlord was residing in a rented house in Mohalla Khoonipur at a rent of Rs.38/- per mensum, of which Abdul Mannan was the landlord. It was alleged that the accommodation in occupation of the landlord was insufficient and, consequently, he required the disputed property for his use.

3. This application under section 21 of the Act was contested by the petitioner. The prescribed authority by an order dated 16th May, 1980 dismissed the release application, holding that the need of the landlord was not bonafide and genuine.

4. Aggrieved by this decision dated 16th May 1980, an appeal was filed by the landlord respondent no. 3 under section 22 of the Act.

The appellate authority allowed the appeal by its judgment dated 24th April, 1981, which has been impugned in the present writ petition.

5. I have heard Sri G. C. Bhattacharya on behalf of the petitioner and Sri S. P. Srivastava on behalf of the respondent landlord.

6. Sri G. C. Bhattacharya has raised two contentions before me. His first contention is that under section 21 (1) (a) first proviso, it was mandatory for the landlord who is a subsequent purchaser to have given to the petitioner a notice of six months before he could move an application under section 21 (1) (a) of the Act. In the absence of a notice, the application for release under section 21 (1) (a) of the Act was not maintainable in law and, consequently, the property could not be released in favour of respondent no. 3. The second contention is that the finding recorded by the appellate court that the need of the landlord is bonafide and genuine, is a finding vitiated in law inasmuch as, firstly the appellate authority has carved out a new case for the landlord respondent and, secondly, on the ground that no reliance could be placed on the commissioner's report unless the objections to the said report has been decided by the appellate authority.

Section 21 (1) of the Act till the first proviso, which is relevant for the purpose of decision of this writ petition is as follows :-

" Section 21 (1) - The prescribed authority may, on an application of the landlord in this behalf, order the eviction of a tenant from the building under tenancy or any specific part thereof if it is satisfied that any of the following grounds exists namely :- (a) the building is bonafide 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 :- Provided that where the building was in 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.................