JUDGMENT A. K. Yog, J.
1. Anwar Hasan Khan, petitioner has filed this writ petition in his capacity as 'tenant' of a shop situate at Mohalla Tarin Jalalnagar, district Shahjahanpur (U. P.) at the rate of Rs. 4 per month. One Musabbar Ali Khan respondent No. 3 is admittedly his landlord of the shop in question (called 'the shop').
2. Petitioner claims that his father (Mehmood Hasan Khan) was the original tenant of the shop since the year 1930 and he has been carrying on retail business of shoes and chappals. The erstwhile owner/landlord migrated to Pakistan leaving no heirs. Rent was. therefore. paid to the Regional Settlement Commissioner since it vested in the Custodian. Property comprising shop was purchased by one Dr. M. D. Malik and he became the landlord. Thereafter one Ahmad All (father of Mohd. Shafi-respondent No. 3) purchased property in the year 1980 when Mehmood Hasan Khan (father of the petitioner) was already a sitting tenant. Mohmood Hasan Khan died in November. 1989 and his heir (present petitioner-Anwar Hasan Khan) and respondent Nos. 4 to 7 became tenant of the shop.
3. Mohd. Shafi Khan (respondent No. 3) filed an application for release (Annexure-4 to the writ petition) under Section 21 (1)
(a), U, P. Urban Buildings [Regulation of Letting, Rent and Eviction) Act.
1972 (U. P. Act No. XIII of 1972) (for short called 'the Act').
4. Mohammad Shafi Khan (respondent No. 3) thereafter gave notice and filed suit for eviction and arrears of rent in the Court of Judge Small Causes.
5. Petitioner, against release application, filed written statement (Annexure-5 to the writ petition) and, besides other pleas, pleaded that release application was not maintainable in absence of six months notice required under First proviso to Section 21 (1) of the Act (Paragraph 13 of the said written statement-particular page 40 of the writ paper book).
6. Parties had opportunity, as they desired, to lead evidence in the release case. Prescribed Authority (respondent No. 2), after hearing respective parties and considering relevant evidence and material on record, allowed the release application vide judgment and order dated 16th December, 1997 (Annexure-10 to the writ petition) and held that :
(i) 'six months notice' was not required to be given in the present case since 'father of the petitioner' was tenant for-about nine years after the purchase of the property by the present landlord and after the death of his father, petitioner has been tenant for another about seven years at the time of filing release application, i.e., notice of six months is not required when second generation had succeeded as tenant (particular page 81 of the writ paper book) ;
(ii) that landlord wanted his son to be settled in the shop, the need of the landlord was genuine and bona fide ; and
(iii) in the facts of the present case, if shop was not released, the landlord will suffer more hardship as compared to the hardship likely to be suffered by the tenant.
7. Civil Appeal No. 36 of 1998. under Section 22 of the Act, was filed against the judgment of the Prescribed Authority. Copy of Memorandum of Appeal has been filed as Annexure-11 to the writ petition. This appeal has been dismissed by the District Judge, Shahjahanpur (respondent No. 1) vide judgment and order dated 16th August, 1999. (Annexure-16 to the writ petition-(particular page 124 of the writ paper book).
8. Feeling aggrieved, petitioner-Anwar Hasan Khan, tenant of the shop in question, has filed this writ petition under Article 226, Constitution of India with prayer to issue writ of certforari to quash aforesaid judgments and orders dated 16th December, 1997 and 16th August. 1999 (Annexures-1 and 2 to the writ petition).
9. Learned counsel for the petitioner has not seriously attempted to challenge findings of fact and fairly conceded that the only point arising in the petition is regarding 'absence of six months' notice'-discussed as point No. 3 in the Appellate Judgment and contained in Ground Nos. 2 and 16 in Memorandum of Appeal (Annexure-11 to the writ petition).
10. Learned counsel for the parties have joined together to request the Court to decide the writ petition finally at 'Admission' stage itself on the sole ground of satisfaction of essential ingredients of First Proviso to Section 21 (1) of the Act which depends upon its interpretation.
11. Learned counsel for the contesting respondent No. 3 submitted that he does not want to file counter-affidavit in view of the fact that the writ petition is to be decided on the basis of interpretation of First Proviso of Section 21 (1) of the Act.
12. All the real contesting parties are duly served and represented. Respondent Nos. 4 to 7 have been impleaded as pro forma respondents. Only petitioner (as Opposite Party No. 1} had contested before Court below. Case proceeded ex parts against legal representatives (except the petitioner) of deceased original tenant (see judgment of Prescribed Authority-particular page 74 of the Writ Paper Book). Respondent Nos. 4 to 7 did not challenge judgment of the Prescribed Authority by filing 'appeal' nor contested the case before Appellate Authority.
13. In view of the joint request at the Bar and that case may not unnecessarily linger, this Court proceeds to decide the writ petition finally at admission stage.
14. The appellate authority, while affirming findings of fact on the question of 'bona fide need' and 'comparative hardship', rejected tenant's contention regarding absence of notice of six months vide point No. 3 in its Judgment (particular page 142 of the writ paper book). It referred to certain decisions and also held that protection contemplated by the Legislature in the first proviso to Section 21 (1) requiring 'six months notice' was to extend protection which was personal to a tenant and the same could be waived. The appellate court observed (particular page 145 of the writ paper book] ;
".....Since the tenant had joined issue on merit, the. opportunity available to the tenant at the very first moment was lost and thus the protection which was legally available to the tenant was waived."
Aforesaid reasoning of the appellate authority, in the facts of the present case, cannot be said to be sound.
15. Petitioner had raised objection regarding absence of six months notice and. therefore, it cannot be said that petitioner had 'waived' its objection on this score. Reference be made to the averments contained in Paragraphs 18, 19 and 20 of the writ petition read with averments contained in the written statement as well as Memorandum of Appeal. The reasoning adopted by the appellate authority in non-suiting the tenant on this score cannot be justified.
16. Interpretation of First Proviso of Section 21 (1) (a) of the Act is involved in several cases, hence I permitted the members of the Bar to address the Court on this question. On 6th September, 1999 case was adjourned to 7th September, 1999 to enable the members of the Bar to study and assist the Court on this subject.
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 exits 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 :
Provided.....
Provided.....
Provided.....
Explanation.--in the case of a residential building :
(i)
(ii)
(iii) Note :-- First "and"
- Second "and"
Learned counsel for the petitioner submitted that under aforesaid proviso, there are two conditions precedent and both must be satisfied before a release application by a landlord (who has. after commencement of the Act. purchased a building with sitting tenant) on the grounds under clause (a) of Section 21 (1) of the Act is filed, i.e. :
(a) three years have expired since the date of purchase ; and
(b) landlord has given 'notice of six months' to the tenant and said six months must have expired before flling of the said release application.
19. Learned counsel for the petitioner argued that under this proviso, 'six months' notice' was ne.cessary and could not be waived (if 'building with tenant' was purchased after 15th July, 1972 commencement of the Act) and secondly a period of three years (after purchase of tenanted building) must have elapsed. He submits that 'notice of six month' will be required under this Proviso-irrespective of any time having passed after said three years.
20. According to the petitioner. the first 'and' in the proviso is 'conjunctive'.
21. It is submitted, on the language of the proviso as it stands, no 'release application' can be entertained unless 'three years' have expired since purchase and a notice of six months is also given (which notice period has also expired) before a release application is filed.
22. Learned counsel for the petitioner relied upon :
(i) 1989 (1) ARC 277 (Relevant Paragraphs 9, 10 and 11). Abdul Jabbar v. VIIth Addl. District Judge, Corakhpur and others.
In the case of Abdul Jabbar (supra), this Court interpreted the words 'in that behalf in the first proviso to Section 21 of the Act' and observed that they and that are very significant. It was not sufficient to Intimate through notice the factum of purpose to the tenant and his Intention to file release application but also notify the grounds under Section 21 (1) (a) of the Act. In the opinion of the learned single Judge, legislative intent was to intimate the tenant that such a landlord bona ide required building in question who may be apprised by notice of six months in advance to vacate or otherwise to face eviction proceedings. Six months notice is held to be a condition precedent for filing a release application under Section 21 (1) First Proviso of the Act. In the case of Abdul Jabbar (supra), notice was given but its validity, due to absence of necessary averments contemplated under Section 21 (1), was challenged. Learned single Judge examined sufficiency of notice in Paragraph 14 of the said judgment and held that notice in that case could not be treated 'good notice' under law because of lack of necessary ingredients and essential contents mandatorily required to be mentioned in it under law.
It will be noted that in the case of Abdul Jabbar, property was purchased on 6th October, 1975. Notice intimating factum of purchase of the property was given on 9th February, 1976 (four months after purchase). Release application was filed on 31st August, 1979 (i.e. after three years of purchase). It was neither pleaded nor argued, that no notice was required after the 'embargo' period of three years' had expired.
(ii) 1993 (1) ARC 210 (Paragraphs 20, 21. 25 and 27). Mahendra Pal Singh v. IInd Additional District Judge. Dehradun and others. Main thrust in the case was regarding meaning of expression "entertained" used in First Proviso to Section 21 (1) of the Act. In Paragraph 27 of the judgment learned single Judge observed that application was filed before expiry of six months under the notice and hence, release application was liable to be rejected. Learned single Judge referred to the earlier decision of Abdul Jabbar and held that notice under first proviso to Section 21 [1) (a) of the Act could not be treated at par with the notice determining tenancy under Section 106, Transfer of Properly Act and further held that filing of application for release before expiration of notice period of six months did not affect Jurisdiction of a concerned Prescribed Authority.
(iii) 1997 (2) ARC 59 (Paragraphs 10, 12 and 16), Vijay Bahadur Singh v. IVth Additional District Judge, Etawah and others. In paragraph 14 of this judgment, it is noticed that requisite plea regarding service of notice of six months was not categorically pleaded and in the facts of that case it was held that it was incumbent upon landlord to unequivocally state facts in order to satisfy requirements of the proviso in question. It was observed that a vague plea on this aspect was of no consequence. In the facts of that case, it was held that notice in terms of first proviso to Section 21 (1) (a) of the Act was not served.
It may be noted that Supreme Court set aside this decision vide its Judgment and order dated 15th January. 1999 in Civil Appeal No. 266 of 1999 arising out of Special Leave Petition (Civil) No. 13931 of 1997. Ram Shankar Dixit v. Vijay Bahadur Singh and another, as revealed from photo copy of above referred Supreme Court judgment dated 15th January, 1999 placed by the Bar before this Court for perusal.
These decisions render no help to the petitioner. The question arising in the present case, was neither raised nor decided in these cases.
Contention of the respondent :
23. Learned counsel for the respondent disputed the stand taken by the petitioner and in support of his contention that notice of six months is not required after three years of purchase, relied upon following decisions :
"In my view what is required is that the application under Section 21 (I) (a) should not be filed before the expiry of six months from the giving of notice to the tenant."
In paragraphs 23 and 25 of this judgment reference is made to the case of Martin & Harris Limited v. VIth Additional District Judge and others, JT 1997 (10) SC 34 : 1998 (1) ARC 109 (SC).
In paragraph 25 it is observed that :
"25. The object of giving such a notice seems to be to give sufficient time to the tenant to enable him to ascertain as to whether the requirements of the new landlord for the tenanted accommodation are genuine and bona fide and also to get alternative accommodation arranged for himself if he realises that the landlord has a good case."
The learned single Judge further observed that in the light of judgment of Supreme Court in Martin & Harris Limited (supra) requirement of notice could be waived by the tenant.
In none of the above cases, question 'whether notice of six months shall be required even after expiry of three years' (irrespective of any length of time after purchase having elapsed) has neither been directly raised, considered or decided as such.
Backdrop in which first proviso-incorporated :
24. What is the object which was conceived by the Legislature while, drafting first proviso to Section 21 (1) of the Act ? To find out the same and to discern the correct meaning of the First Proviso in question, it will be useful to refer to the 'back-ground' which led to the incorporation of first proviso to Section 21 (1) (a) of the Act.
25. In the case of Good Year India Limited and others v. State of Haryana and another. (1990) 2 SCC 7 (paragraph 11), Apex Court observed that it is just and proper to see what was the position before the Act and find out what was the mischief that was sought to be remedied and then discover true rationale for such a remedy.
Reference may be made to the decision in Janki Prasad v. Harish Chand, AIR 1960 All 211 (LB) (OBJ. Relevant Paragraphs 6 and 7 are reproduced below :
"(6) in the present case the plaintiff was actually a purchaser and not an original owner and immediately after the purchase he had applied for permission to sue. One of the question that arises is whether such a purchaser should have been allowed permission or not but that question is not justifiable and was within the exclusive jurisdiction of Rent Control and Eviction Officer. It is true that the original owners may not be requiring the premises let out for their personal use, and. therefore, may not be entitled to ask for permission but by transferring the property, the original owner thereby gives a right to the purchaser to evict a tenant, who might be residing in the premises or carrying on business for a pretty long time and by thus selling and authorizing a new purchaser to evict, the object of the Control of Rent and Eviction Act to a very great extent is frustrated. As the preamble of the Act shows that for the shortage of accommodation, it was considered expedient to provide for continuance of the powers to control the letting and the rent of such accommodation and to prevent the eviction of tenants therefrom. In this way though the tenant may not have any apprehension of being evicted by the original owner a new purchaser may harass the tenant by his ejectment.
(7) The matter as we have said is not within our jurisdiction to consider. It is for the State Government either to frame rules to the effect that a new purchase for a limited period of five or ten years will not be entitled to ask for ejectment on the ground of his own personal need or to issue directions to the Rent Control and Eviction officer to see that the tenants are not harassed by the purchasers, but if they do not choose to do so, we do not think that the tenant can get any assistance from this Court.
Scope and meaning of Section 21 (1) (a)--first proviso of the Act (U. P. Act No. XIII of 1972 :
26. Supreme Court in the case of Martin and Harris Limited (supra) also held that before filing release application on grounds under Section 21 (1) (a) before Prescribed Authority. a notice of six months must precede but this mandatory requirement of six months for benefit of a tenant, can be waived and release-proceedings shall not be vitiated. Supreme Court thus laid down that giving a notice is essential but expiry of 6 months time is not essential/necessary and it can be waived by the tenant.
27. There can be no doubt that object of the first proviso in question is to avoid frivolous transfers intended to frustrate the Act, namely, protection to the tenant and avoid release on Tailor-made' application by manipulation or man-made mechanism out of ingenuity of erstwhile owner and present purchaser-cum-landlord. It will not be sound to presume that Legislature intended to Incorporate restriction even on a bona fide landlord (through purchase) in order to protect a Sitting tenant, who may not be requiring the accommodation at all or the whole of it.
28. Proviso in question is to be interpreted so as to balance the need of both genuine landlords (by purchase) and also to protect bona fide tenants from frivolous/manipulated 'sales', precipitating out of human ingenuity and/or unscrupulous scheming under the garb of 'purchase'.
29. The Legislature provided three years general bar or in the alternative required '6 months notice' to the tenant to arrange his affairs. Such logical approach in adopting interpretation-fulfills the object, avoids inconsistency and provides sound meaning to the proviso. It shall also discourage frivolous transfers and avoid release application being filed on 'forged' grounds aimed to frustrate the solemn object of the Act, (namely oppression of 'tenants').
30. It may be noted that first proviso qualifies cases of release covered under Section 21 (1) (a) of the Act (which did not otherwise require six months notice). This proviso even permits filing of release application (on grounds covered under Section 21 (1) (a) of the Act). The only restriction imposed is that it can not be "entertained" (i.e. allowed) before expiry of three years from the date of purchase.
31. This shows that Legislature never intended that a landlord, who has bona fide purchased a 'building with tenant' without intention to camouflage the Act and bona Jide required release of his accommodation, should be kept at bay unnecessarily.
32. The intention of the Legislature is clear that no release application could be entertained (precisely to say-'allowed') after the Act commenced within three years of the purchase of a building if there is a sitting tenant. The Legislature could not be expected to exclude a 'bona fide' landlord through purchase from being considered for release for three years. The Legislature, therefore, provided an exception to the above 'embargo' of 'three years' by providing that a 'bona Jide landlord through purchase' could make an application for release by giving six months' notice.
33. Reading of the proviso in this manner avoids anomalies, which, one may comprehend.
34. Considering the language used in the 'First proviso' and keeping in mind the object for providing the said proviso, one fails to find any good reason for attaching the condition of six months notice even after three years period after purchase, as suggested by the petitioner's counsel. There could possibly be no object for providing such an obligation on the landlord.
35. In the Instant case, the building was purchased when father of the petitioner was tenant. Release application has been filed after about 15 years of the purchase in question and when original purchaser had even died long back. The question of frustrating the object of the Act, in the above facts, cannot be conceived at all.
36. Under First Proviso to Section 21 (1) fa) of the Act, I hold no six months notice is required in a case where 'three years' have elapsed since the purchase of a building. Six months' notice is required only in a case where a landlord has purchased a building with tenant on and after 15th July. 1972 (i.e., the commencement of the Act) and wants his release application to be allowed on immediate expiry of three years under Section 21 (1) (a) of the Act. Release Application under the proviso can be filed any time after "the purchase" but it must precede by six months' notice. It is, however, open to a tenant to waive 'objection' on the ground of notice being inadequate (being short of six months) and such an objection, being waived, this deficiency will not vitiate release proceedings or render the order of the Prescribed Authority a nullity.
37. The question whether the proviso contemplates absolute 'ban' of three years in all contingencies and that 'release application' can be allowed even before three years period has elapsed by giving six months notice just after purchase does not arise directly in the present case but since it has been raised at" the Bar on behalf of the respondent and, therefore, decided-though only incidentally.
Principles of Interpretation :
38. When a Court should venture to interpret a statutory enactment? What are the guidelines, principles and criterion for Interpretation ? Answer is to be found in AIR 1984 SC 684 (Paragraph 50), R. S. Nayak v. A, R. Antulay. Supreme Court, with approval, quoted a passage from AIR 1971 SC 1283 {1284), which reads :
"..... what particular meaning should be attached to words and phrases in a given instrument is usually to be gathered from the context, the nature of the subject-matter, the purpose or the intention of the author and the effect of giving to them one or the other permissible meaning on the object to be achieved. Words are after all used merely as a vehicle to convey the idea of the speaker or the writer and the words have naturally, therefore, to be so construed as to fit in with the idea which emerges on a consideration of the entire context. Each word is but a symbol which may stand for one or a number of objects. The context, in which a word conveying different shades or meanings is used, is of importance in determining the precise sense which fits in with the context as intended to be conveyed by the author."
39. In Union of India and others v. Filip Tiago De Gama of Vedem Vasco De Gama, (1990) 1 SCC 277 paragraph 16, Supreme Court observed :
"16. The paramount object in statutory interpretation is to discover what the Legislature intended. This Intention is primarily to be ascertained from the text of enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text nor a divine revelation..... Learned Hand, J., was equally emphatic when he said : "Statutes should be construed, not a theorems of Euclid, but with some Imagination of the purposes which lie behind them." Lenigh Valley Coal Company v. Yensavage : 218 FR 547, 553.
40. Two passages from 'The Discipline of Law', by Lord Denning, may be usefully referred :
"Whenever a statue comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and. even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an Instrument of mathematical precision. Our literature would be much the poorer if it were.
"A judge must not alter the material of which it is woven, but he can and should iron out the creases."
41. Commentaries dealing with Statuary Interpretation supports the argument that both 'and' as well as 'or' vary in their colour and complex and one can be substituted for the other. To avoid anomaly and to remove ambiguity in an enactment, one has to ascertain Its true complex and thus arises the contingency for interpretation. Reference be made to the Book 'Principles of Statutory Interpretation' by Justice G. P. Singh (Fourth Edition 1988 page 250-252).
42. In 'The Law Lexicon' by Justice T. P. Mukherjee, Second Edition page 115, one can find following passage :
in State of Bombay v. R. M. D. Chamarbaugwala. AIR 1957 SC 699 at 700. the Supreme Court read 'or' as 'and' to give effect to the clear intention of the Legislature as expressed in Bombay Lotteries and Prize Competitions Control and Tact Act, (No. 54 of 1948). Similarly. In Mazagaon Dock Ltd. v. Commissioner of Income-tax Excess Profits Tax, AIR 1958 SC 861 : 1958 SCJ 1261 : 1959. SCR 848 : 61 Bom LR 85, the word 'or' was read as 'and', as the result produced by reading 'or' in Section 42 (2] of the Income-tax Act, 1922, could not have intended.
The use of the conjunction 'and'/'or' is not a rare feature. Lord Simon. L. C. observed :
"Para 18 stated the alternative claim in a variety of phrases, separated from one another by the use of the bastard conjunction 'and/or' which has. I fear, become the Commercial Courts' contribution to basic English, "J.J.S. Rodrigues v. Union of India, AIR 1967 Goa 169 at 186".
43. The Law Lexicon by P. Ramanatha Aiyar Reprint Edn. 1987 at p. 67-explalns 'and' and quotes-" .....However in such a connection it is by force of a context-read as 'or'. "And among t others, has been defined in Black's Law Dictionary. 5th Edn. (p. 79) in following words"..... Sometimes construed as "or". 44. In Paragraph 11 of AIR 1968 SC 1450, Inshwar Singh v. State of U. P., Supreme Court observed :
There can be no doubt that word 'and' can be read as 'or' if the situation demands. Reference may also be made to [1) AIR 1998 SC 2765 paragraph 13 to 15, Samee Khan u. Birdu. Khan, (2) AIR 1964 SC 1099 Paragraph 26, Vidyacharan Shukla a. Khub Chand Bheghal and others, (3) AIR 1987 SC 1253 Paragraph 4, Joint Director, Mines Safety v. M/S. T & N Stone Quarries (P.) Limited and (4) JT (1994) 3 SC 116 Paragraph 11. C.W.S. (India) Limited v. CFT.
Para 11 (relevant portion) in the case of C.W.S. India (supra) reads :
"11.....while we agree that literary construction may be the general rule in construing taxing enactments, it does not mean that it should be adopted even if it leads to a discriminatory or incongruous result. Interpretation of statutes cannot be a mechanical exercise. Object of all the rules of Interpretation is to give effect to the object of the enactment having regard to the language used.....The following passage from Maxwell's Interpretation of Statutes' (12th Edn). may usefully be quoted :
Modification of the language to meet the intention :
45. Where the language of the statute, in Its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment. or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar. by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the Legislature could not possibly have Intended what Its words signify, and that the modifications made are mere corrections of careless language and really given the true meaning.....the canons of construction are not so rigid as to prevent a realistic solution.
46. It is an accepted principle of Interpretation of a "proviso" (which is generally an exception to main rule) to assign it a 'meaning' which restricts scope.
47. Where literal interpretation leads to absurd or unjustified result. language of a statute can be modified to accord intention of Legislature and to avoid absurdity as held in JT (1994) 3 SC 115 and AIR 1992 SC 2169.
48. First proviso to Section 21 (1) of the Act is an exception to main Section. It applies only to those landlords, who on and after 15th July, 1972, have purchased or may purchase a building with sitting tenant. The proviso says that 'release application' under Section 21 (1) (a) of the Act shall not be entertained unless the condition contemplated under this Proviso is satisfied.
49. Aforesaid proviso, on its split, shall read as follows :
(i) Where a building was in the occupation of a tenant since before its purchase by the landlord.
(ii) Such purchase being made after commencement of this Act (i.e., 15th July, 1972).
(iii) No application shall be entertained on the grounds mentioned in clause (a) of Section 21
(iv) Unless a period of three years has elapsed since date of such purchase.
(v) (a) The landlord has given a notice in that behalf to the tenant not less than six months before such application ; and
(b) Such notice may be given even before the expiry of the aforesaid period of three years.
The relevant clauses, according to me, if harmoniously joined together, will read....
No application of a landlord, who purchases a building with tenant on and after 15th July, 1972, shall be entertained on the grounds mentioned in Section 21 (1) (a) of the Act :
(A) Unless a period of three years has elapsed since the date of purchase ; or (B) Unless the landlord gives notice, (which may be given before the expiration of the aforesaid period of there years) in that behalf to the tenant not less than six months before filing such an application.
First Proviso in other words means :
A release application of a landlord, who has purchased building with sitting tenant, after 15th July, 1972, shall be entertained-
1. Only when three years period after purchase expires, (and in that case no 'notice' of six months is required) or
2. The landlord gives six months' notice before filing application for release and an objection on the ground of such notice can be waived by the tenant.
in the First Proviso troubleshooter word 'and' has been used twice.
For an unambiguous and harmonious reading, it is not possible to assign it one and the same meaning at both the places.
Phrase A is a self-contained independent clause. Similarly phrase (b) is also an independent clause. It is like further an exception to the absolute ban provided in phrase A. Phrase after 'IInd and' is explanatory in nature. It explains and clarifies that notice of six months (referred to in IInd phrase after Ist and) can be given even before expiry of three years from purchase irrespective of expiry of 'three years'.
Therefore, six months notice is not dependent upon expiry of said three years period. In other words, under this proviso, a landlord can file release application and it shall be entertained notwithstanding expiry of three years from purchase of the building provided six months notice period has expired.
if the object was to provide for an absolute ban of three years, then in that case why the Legislature should require six months notice even after expiry of said three years and thus extending initial ban of three years period by another six months. It will also run contrary to third 'phrase' in the Proviso, which says that a landlord can give six months notice even prior to expiry of three years period.
50. Reasons and the findings on this aspect-dealing with the Interpretation of the First Proviso to Section 21 (1) (a) of the Act may be considered in an appropriate case by this Court or the Apex Court.
51. Supreme Court in the case of Martin & Harris Limited (supra) had no occasion to deal directly with this question. The Apex Court, however, in Paragraph 9 of the judgment in the case of Martin &. Harris Limited (supra) held that :
1. Release application, by a" landlord (who has purchased building with tenant on and after 15th July, 1972). can be filed within three years of purchase but three years period must expire on the date when application is being finally decided on merit.
2. Release application should be filed only after expire of six months' notice period.
52. For the foregoing discussion. 1 find that the judgment and order passed by the Courts below do not suffer from manifest error apparent on the face of record.
53. No other point has been argued and pressed.
54. Judgment and order dated 16th August, 1999 passed by District Judge, Shahjahanpur (respondent No. 1) in Civil Appeal No. 36 of 1998 (Annexure 16 to the writ petition) and judgment and order dated 16th December, 1997 passed by Prescribed Authority/Civil Judge (Junior Division), Shahjahanpur (respondent No. 2) in P. A. No. 4 of 1995 (Annexure-10 to the writ petition, are hereby affirmed.
55. Writ petition accordingly, dismissed.
56. No order as to costs.