Kumar & Anr Vs. Munni Devi  Insc 289 (28 April 2005)
R. C. Lahoti, G. P. Mathur & P.P. Naolekar
out of Special Leave Petition (C) No.17996/2002) G. P. MATHUR, J.
This appeal by special leave has been preferred against the judgment and order
dated 26.7.2002 of Allahabad High Court by which the writ petition preferred by
the appellants was dismissed.
Lal, the father of the appellants was a tenant of a shop bearing No. 29/17, Namak
Ki Mandi, Agra and it was purchased by the
respondent Smt. Munni Devi on 23.01.1976.
the death of Jawahar Lal, the appellants being his sons inherited the tenancy
and started paying rent to the respondent.
respondent filed an application in the year 1987 seeking release of the shop on
two grounds, namely, that the building was in a dilapidated condition and is
required for the purpose of demolition and new construction wherein her husband
will carry on the business after new construction had been made. The second
ground pleaded was that one of her sons was unemployed and was sitting idle and
he would also establish his business in the shop.
appellants contested the release application on various grounds. The Prescribed
Authority dismissed the release application by the judgment and order dated
15.04.1989. The respondent then preferred an appeal which was allowed by the VIIth
Addl. & District Judge, Agra, by the
judgment and order dated 13.9.1996 and the shop was released in favour of the
respondent and she was directed to pay rent of one year as compensation to the
appellants. The appellants challenged the aforesaid judgment by filing a writ
petition in the Allahabad High Court which was dismissed on 26.07.2002.
Siddartha Bhatnagar, learned counsel for the appellants, has submitted that the
landlord had applied for release of the shop under the tenancy of the
appellants under Section 21(1)(a) of UP Urban Builldings (Regulation of
Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) and
the first proviso to said sub-section requires giving of notice by the landlord
to the tenant not less than six months before filing of such application and as
in the present case no such notice had been given, the release application was
not maintainable and was liable to be dismissed on this ground alone. Learned
Counsel has submitted that the aforesaid provision has come up for
consideration before this Court in Martin & Harris Ltd. vs. Vth Addl.
District Judge 1998 (1) SCC 732 wherein it was held that the requirement of
giving prior notice was mandatory. Challenge has also been raised to the
findings recorded by the Appellate Authority in favour of the landlord and it
has been urged that she had no bona fide requirement of the property and
further the appellants would suffer greater hardship in the event of release of
the shop in which they were carrying on business for a long time.
Learned counsel for the respondent has submitted that six months' notice had in
fact been given in the present case before filing the release application. He
has also submitted that the provision of giving six months' notice before
filing the release application is not mandatory and, therefore, the release
application cannot be held to be not maintainable even if no such notice is
given by the landlord. In support of this submission, learned counsel has
placed reliance on a later decision of this Court in Anwar Hasan Khan vs. Mohd.
Shafi and Ors. 2001 (8) SCC 540 wherein it was held that the period
contemplated for not initiating the eviction proceedings against a tenant on
the grounds specified in Clause (a) of sub-section (1) of Section 21 was three
years and in no case more than three years and six months and any proceeding
initiated for release of the building on the aforesaid ground after the expiry
of the period does not require the service of six months prior notice. Learned
counsel has further submitted that after a thorough examination of the evidence
on record the Appellate Authority had recorded clear findings that the need of
the landlord was bona fide and genuine and further that in the event the shop
was not released the landlord would suffer greater hardship. It has thus been
submitted that the Judgment of the Appellate Authority is perfectly sound and
the writ petition filed by the appellants was rightly dismissed by the High
Court and as such there is absolutely no occasion for this court to interfere
in a Special Leave Petition filed under Article 136 of the Constitution.
judgment of the Appellate Authority shows that the respondent (landlord) moved
an application for adducing additional evidence in appeal, which was allowed on
respondent filed the copy of the notice dated 17.2.1983 sent by Shri Jethanand,
Advocate on her behalf and also the copy of the reply dated 8.3.1983 sent by Shri
Ram Chander Bhakru, Advocate.
aforesaid documents were proved by Shri Rakesh Kumar Bansal, clerk of Shri Jethananad,
Advocate. The respondent also filed affidavit of Shri Brij Mohan. Thereafter, the
tenant summoned Bangali Mal (husband of respondent, Smt. Munni Devi), Brij
Mohan and Rakesh Kumar Bansal and they were cross- examined. The Appellate
Authority, after considering the aforesaid evidence, has recorded a clear
finding that a notice was sent by the landlord before filing the release
application and the requirement of first proviso to Section 21(1)(a) of the Act
had been complied with. The filing of the additional evidence before the
Appellate Authority finds mention in the Writ Petition which was filed by the
appellants in the High Court.
view of the findings recorded by the Appellate Authority and also by the High
Court that a notice, as contemplated by the first proviso to Section 21(1)(a)
of the Act, had been sent by the landlord we do not consider it necessary to
decide the legal issue raised by the learned counsel for the appellants and the
same may be done in a more appropriate case.
Appellate Authority has recorded a clear finding that the need of the landlord
was bona fide and genuine and further that the landlord will suffer greater
hardship in the event of rejection of the release application than that which
will be suffered by the tenants in the event of grant of the application as
they had several other vacant shops in their occupation. The Appellate
Authority has also recorded a finding that the requirement of first proviso to
sub- Section (1) of Section 21 of the Act had been complied with as a notice
was given before filing of the release application. The High Court, therefore,
rightly declined to interfere with the order passed by the Appellate Authority
while exercising jurisdiction under Article 226 of the Constitution.
There is no merit in the present appeal which is hereby dismissed with costs.
The appellants are granted time till 31.07.2005 to vacate the building subject
to their filing the usual undertaking within one month.