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2016 Supreme(All) 4084
ALLAHABAD HIGH COURT
Sunita Agarwal, J.
Rajendra Prasad Gupta and Another - Appellant
Versus
District Judge and 7 Others - Respondent
Writ A No. 45922 of 2015
Decided On : 12-01-2016
For the Petitioner: Arvind Srivastava,Rishabh Kumar
For the Respondent: A.K. Rai,V.K. Singh
The main legal point established in the judgment is the mandatory nature of the six months' notice requirement under the first proviso to sub-section (1) of Section 21 of U.P. Act No. 13 of 1972 and the possibility of waiver by the tenant.
Headnote:
Notice - Release of Shop - U.P. Act No. 13 of 1972, Section 21 - 21(1)(a), 21(1)(a) proviso - Martin & Harris Ltd. vs. VIth Additional Distt. Judge and Others, Anwar Hasan Khan vs. Mohd. Safi and others, Nirbhai Kumar v. Maya Devi and others - The court discussed the requirement of six months' notice under the first proviso to sub-section (1) of Section 21 of U.P. Act No. 13 of 1972 and its interpretations in the judgments of Martin & Harris Ltd., Anwar Hasan Khan, and Nirbhai Kumar. It emphasized the mandatory nature of the notice and the possibility of waiver by the tenant. The court highlighted the protection provided to sitting tenants and the relevance of the three years' period in case of a change of ownership.
Fact of the Case:
The landlady filed a release application for a shop, claiming it was needed for her unemployed sons' business. The tenant objected, citing the lack of a six months' notice before the release application. The courts below allowed the release application, considering the judgment in Anwar Hasan Khan. The tenant contested the maintainability of the release application based on the notice requirement.
Finding of the Court:
The court found that the release application was not maintainable as it was not preceded by the mandatory notice required under the first proviso to sub-section (1) of Section 21 of the Act. It concluded that both the courts below erred in proceeding with the release application on merits and quashed their judgments and orders. The release application was rejected as not maintainable, and the writ petition was allowed.
Issues: The main issue was the requirement of a six months' notice before filing the release application under Section 21(1)(a) of U.P. Act No. 13 of 1972. The court also addressed the tenant's objection regarding the maintainability of the release application based on the notice requirement.
Ratio Decidendi: The court emphasized the mandatory nature of the notice requirement under the first proviso to sub-section (1) of Section 21 and the possibility of waiver by the tenant. It highlighted the protection provided to sitting tenants and the relevance of the three years' period in case of a change of ownership. The court concluded that the release application was not maintainable without the mandatory notice.
Final Decision: The court quashed the judgments and orders of the lower courts, rejected the release application as not maintainable, and allowed the writ petition.
Mrs. Sunita Agarwal, J. -- Heard Sri Arvind Srivastava, learned counsel for the petitioners and Sri V.K. Singh, learned counsel for the respondents.
2. The present writ petition is directed against the orders of two courts below in a proceeding of release of the shop in question on personal ground under Section 21 (1) (a) of U.P. Act No. 13 of 1972.
3. The release application has been filed for the need of the shop in question that it was required for establishing two sons of the landlady in business who were unemployed. It is stated in paragraph 1' of the release application that the premises in question was purchased by her on 9.7.1997 and the opposite parties nos. 1 and 2 were inducted by the erstwhile owner namely Smt. Pushpa Agarwal. The release application was objected by filing a written statement on 1.7.2005 on the ground that the need set up by the landlady was neither genuine nor bonafide. No notice was given before filing of the release application on 1.7.2005 as required under first proviso to sub-section (1) of Section 21 of the Act.
4. A proceeding under Section 30 of U.P. Act No. 13 of 1972 was initiated by the opposite parties-tenant in the year 2003 in which Smt. Geeta Devi, the current landlady had appeared and contested the application on the ground that the building in question is in dilapidated condition. Pursuant to the order of Court below, rent is being deposited in the said proceeding.
5. The Prescribed Authority has allowed the release with the finding that the landlady required the shop in question for the need of her sons who were not engaged anywhere.
6. On the question of notice considering the judgment of Apex Court in Anwar Hasan Khan vs. Mohammad Shafi and Others, it was held that since the premises was purchased on 9.7.1997 and the release application had been filed after a period of 8 years from the date of purchase, there was no requirement of giving six months notice.
7. The Appellate Court also came to the conclusion that no notice was required in view of the judgment of Apex Court in Anwar Hasan Khan vs. Mohd. Shafi and others (2001) 8 SCC 540 .
8. The main thrust of argument of the learned counsel for the petitioners is that the release was not entertainable as the landlady did not fulfill the requirement of six months notice as required under first proviso to sub-section (1) of Section 21 before filing the release. The notice is mandatory as has been held by the Apex Court in Martin & Harris Ltd. vs. VIth Additional Distt. Judge and Others (1998) 1 SCC 732 .
9. The Courts below have erred in placing reliance upon the judgment of Apex court in Anwar Hasan Khan (supra) in coming to the conclusion that no notice was required. While placing reliance upon this judgment, a later judgment in Nirbhai Kumar v. Maya Devi and others (2009) 5 SCC 399 wherein the ratio in Martin & Harris Ltd. (supra) has been approved while disapproving the view taken by the Apex Court in Anwar Hasan Khan (supra) has not been taken note of.
10. It has been held in paragraph 5' of Nirbhai Kumar that the decision in Martin & Harris Ltd. express the correct view that in the case of subsequent purchase of an accommodation with the sitting tenant, even if the release application is filed after three years of purchase, six months prior notice as required in the first proviso to sub-section (1) of Section 21 is mandatory. The release application could not be maintained in absence of such notice. In paragraph 5', the Apex Court has found that in deciding the Anwar Hasan Khan's case, the decision in Martin & Harries Ltd., was not placed before the Bench concerned and has not been considered.
11. He further submits that the Nirbhai Kumar's case has been decided by a larger Bench of three judges on a reference made by the Chief Justice and being a later judgment is holding the field and is binding upon this Court.
12. Learned counsel for the respondent on the other hand submits that the premises in question was purchas
