Court No. - 38
Case :- WRIT - A No. - 1915 of 2021 Petitioner :- Asraf Ali Respondent :- Iqbal Ahmad Counsel for Petitioner :- Rajesh Kumar,Firoz Haider Counsel for Respondent :- Dharmaveer Singh,Dharmaveer Singh
Hon'ble Siddharth,J.
Heard Sri Rajesh Kumar, learned counsel for the petitioner and Sri S. N. Singh, Advocate, holding brief of Sri Dharmaveer Singh, learned counsel for the respondent.
The tenant has filed a supplementary affidavit explaining the laches in filing of the writ petition, which is taken on record. The explanation in the supplementary affidavit is that on account of spread of novel corona virus and consequent disturbance caused in the functioning of the court, delay took place in filing of the writ petition and it does not suffers from laches.
This writ petition has been filed praying for quashing of judgment and order dated 13.12.2019 and 20.12.2019 passed by Additional District Judge, Court no.2, Mau in Civil Rent Appeal No.10 of 2019.
The facts of the case in brief are that the landlord-respondent filed an application under Section 21(1) (a) of U.P. Act No.13 of 1972 before the Prescribed Authority / Civil Judge (Senior Division),Mau, which was registered as P A Case No. 5 of 2014. The application was filed on the ground that the respondent is landlord of the shop in dispute and he has purchased the same on 10.12.2007. He needs the shop since he is having a shop on the first floor of the shop in dispute and tenant-petitioner is tenant of the shop on the ground floor. His customers face difficulty in coming is his shop on the first floor and therefore, he has purchased the shop in dispute from the erstwhile owner so that he can expand his business. He requested the tenant-petitioner to vacate the shop number of times but he is not willing to vacate the same. He sent notice dated 11.12.2013 to the tenant-petitioner though his counsel, which was served on him personally but the shop was not vacated and hence he has filed release application for release of the shop in dispute and to deliver vacant possession.
The tenant-petitioner filed his reply admitting the respondent to be his landlord. He also admitted that he is tenant on the ground floor of the building where the landlord-respondent has shop on the first floor. However, he denied that the landlord-respondent has bonafide need of the shop in dispute since he has three shops in Sadar Chowk, Mau and four other shops which are under the tenancy of different tenants. The landlord-respondent has shop in Reshmi Gali, Mau. He has another shop in the name of Sunder Fabrics and he is owner of embroidery machine. The disputed shop is not needed by the landlord-respondent since he sits in his shop at Reshmi Gali. He has one vacant shop at Faizan Road, Mohalla Malik Tahirpura, which is vacant. He can do business in the same. The landlord-respondent tried to take forcible possession of the shop in dispute in the year 2010 but on account of intervention of police he failed to succeed. He went to jail and was enlarged on bail. No notice was received by him. In case the shop is released in favour of the landlord-respondent, tenant-petitioner and his family will reach the stage of starvation. The need of the petitioner is more pressing, genuine and bonafide. Despite best efforts he could not get vacant shop in the area and hence, application of the landlord-respondent may be rejected.
The Prescribed Authority framed the following three issues.
(i) Whether there is relation-ship of landlord and tenant between the parties?
(ii) Whether landlord gave notice to the tenant to vacate the shop as per law ?
(iii) Whether the applicant has bonafide need of the shop.
The Prescribed Authority recorded the finding that there is relation-ship of landlord and tenant between the parties while deciding issue no.(i) Regarding issue no.(ii) it held that six months notice required under the proviso Section 21(1)(a) of U.P. Act No.13 was not in accordance with law since the notice was given on 11.12.2013 and application for release of shop was filed on 13.01.2014. It found the application of landlord- respondent to be filed for bonafide need while deciding issue no.(iii).
The Appellate Court found that after filing of release application dated 13.01.2014 and registration of the same as P.A Case the notice of the case was served by way of publication on the tenant-petitioner on 20.09.2014 and only on 20.12.2014 the notice on the tenant was held to be sufficient. On 17.01.2015 the tenant appeared before the Court and filed his statement on 23.01.2016. The Appellate Court came to the conclusion that the requirement of six months legal notice was not there since by the time notice of the P A case was served on the tenant more than six months period had elapsed and since more than three years period has passed from the date of purchase of property by the landlord, when the notice was given to the tenant, there was no requirement of six months legal notice. The Appellate court relied upon the judgement of this Court in the case of Pradeep Kumar Vs. Ram Gopal and others (2010), Allahabad Civil Journal 1181. It directed that Rs.30,000/- shall be paid to the tenant- petitioner toward hardship faced by the tenant in vacating the shop. The judgement of the Prescribed Authority was set aside and the appeal of the landlord-respondent was allowed by the Appellate Court directing the tenant-petitioner to vacate the shop in dispute within two months.
After hearing the learned counsel for the parties, this Court finds that Prescribed Authority found the need of the landlord-respondent to be genuine and bonafide and also found that there is relation-ship of landlord and tenant between two. The release application of the land-lord respondent was dismissed only on the ground of defect in notice. It was held by the Prescribed Authority that notice was given by the landlord - respondent on 11.12.2013 and the PA case was filed 23.01.2014, which was within a period short of six months and hence dismissed the release application of the landlord-respondent. Three years period is provided under proviso (1) to Section 21 of U.P. Act No.13 and becomes relevant when there is change of owner-ship. The bar of entertainment of release application prior to completion of three years since the date of acquisition of the property by the landlord has been provided in the Act. This three years is a sort of moratorium intended for the protection of tenant.
Therefore, notice can be given before or after three years period. It is only after expiry of three years period that the protection given to the tenant against eviction comes to an end. Similarly six months notice provided in the aforesaid section can be given earlier but reasonable opportunity is to be given to the tenant and he cannot be ordered to vacate within six moths period provided in the Act. The period of six months notice is intended to give reasonable opportunity to the tenant to make arrangement for alternative accommodation.
In the present case tenant had adequate notice of intention of the landlord to get his shop vacated. He purchased the shop in dispute in 2007 and gave six months' notice in the year 2013. Six months notice was given on 11.12.2013 and the notice of the release application was served by way of publication on 20.12.2014. He had more than one year's notice of intention of the landlord to get the accommodation released.
Therefore, judgement of the Appellate Court does not suffers from any illegality.
The writ petition fails and is accordingly dismissed.
Learned counsel for the petitioner has submitted that the tenant-petitioner is a poor man while the landlord has number of shops and is a rich person. The tenant-petitioner will face difficulty in getting a new shop and establishing his business afresh therein. He may be granted two years time to vacate the shop in dispute.
Learned counsel for the respondent has vehemently opposed the prayer made on behalf of the learned counsel for the petitioner. He has submitted that the tenant-petitioner has already enjoyed the shop for long time. He should be directed to vacate the shop in dispute forthwith. Execution proceedings are pending against him.
After hearing learned counsel for the parties, it could not be denied that the shop under the tenancy of tenant-petitioner is source of his livelihood and he will be required to search another shop for his business therein. He will inform its customers of change of his shop. Consequently, tenant- petitioner is granted one year's time to vacate shop in dispute of the landlord-respondent subject to undertaking furnished within four weeks before the Prescribed Authority that within time provided by this Court, he will deliver vacant and peaceful possession of the shop in dispute to the landlord-respondent. The landlord-respondent will make payment of Rs.30,000/- to the tenant petitioner as directed by the Appellate Court on the date the shop in dispute is vacated by the tenant-petitioner. In case of failure to furnish the undertaking as directed by this Court it shall be open for the landlord-respondent to proceed with the execution and get the shop in dispute vacated from tenant-petitioner in accordance with law.
Order Date :- 29.7.2021 SS