Court No. - 19
Case :- WRIT - A No. - 23834 of 2018 Petitioner :- Khem Chandra Haswani @ Tindey Respondent :- Smt. Sarla Devi Counsel for Petitioner :- Amit Kumar Singh Counsel for Respondent :- Kamlesh Kumar Mishra, Ashish Kumar Singh, Kamlesh Kumar Mishra
Hon'ble Manoj Kumar Gupta,J.
Heard counsel for the parties.
The instant petition is directed against the order dated 1.9.2017 passed by Prescribed Authority in P.A. Case No.8 of 2014 and the judgement and order dated 10.10.2018 passed by Appellate Court in Rent Control Appeal No.18 of 2017.
The brief facts necessary for disposal of the instant petition are as follows:-
The respondent Smt. Sarla Devi filed a release application purporting to be under Section 21(1)(b) of U.P. Act No.13 of 1972 (hereinafter referred to as 'the Act'). Under Section 21(1)(b) of the Act, the Prescribed Authority can direct eviction of a tenant from a building which is in dilapidated condition and is required for purposes of demolition and new construction. A perusal of the assertions made in release application would show that apart from pleading how the building was in dilapidated condition, it is also pleaded in paragraphs 8 and 9 that the building in tenancy of the petitioner would be required by the landlady for residential need of her family, after demolition and undertaking new constructions. It is specifically pleaded that a new residential building, to meet the need of the family, would be constructed after demolishing the old dilapidated structure. It is also pleaded that the family of the respondent comprises of herself, her husband and three sons, all major. It is alleged that the marriage of eldest son had been fixed whereas the two other sons would be married in near future. The respondent alongwith her husband and members of her family are residing in the house belonging to her father- in-law, who is compelling her to vacate. She therefore requires the building for residential purposes after demolition and new construction.
The aforesaid pleading in the release application squarely brings the same within the ambit of Clause (a) of sub-section (1) of Section 21 where the Prescribed Authority is empowered to order eviction of a tenant on the ground that building is bonafide required after demolition and new construction by the landlord for occupation by himself or any member of his family.
The petitioner contested the release application by filing a written statement and in paragraph 2 thereof he pleaded that before 21.8.2012 the owner and landlord of the tenanted premises was one Bhagwan Das son of Brajdhari. He also pleaded that the ground floor and the first floor of the building was lying vacant whereas he is occupying the second floor. He also pleaded that if the respondent has any need, she could occupy the ground floor and second floor of the building. He further took a plea that the building could be maintained in perfect condition by undertaking repairs and it is not necessary to demolish the same.
The Prescribed Authority held that the relationship of landlord and tenant stands duly established between the parties. It also held that abundant evidence was brought on record to establish that the building is in dilapidated condition. He made a passing reference to the averment in the release application that the respondent-landlady has been residing with her father-in-law. The Prescribed Authority ultimately concluded by observing that the building is in dilapidated condition and is required for demolition and new construction. However, no clear-cut finding was recorded as to whether the building was required by the respondent- landlady for her personal need or not. The Prescribed Authority also held that the petitioner did not make any effort to find out alternative accommodation, therefore the comparative hardship lies in favour of the landlady.
Being aggrieved by the order passed by Prescribed Authority, the petitioner filed an appeal being Rent Appeal No.18 of 2017. Before the appellate court, the petitioner raised a specific plea that the Prescribed Authority did not consider the question of bonafide need nor the requirement laid down in Rule 16 of the Rules framed under the Act.
The appellate court in the impugned judgement has framed point no.1 as regards bonafide need of the respondent-landlady and while deciding the same, the appellate court has recorded a categorical finding that the respondent-landlady and her family comprising of her husband and three major sons are residing in the house of her father-in-law, who is pressing to vacate the same. Her need is therefore genuine and bonafide. She would require the disputed building, which is already in dilapidated condition, for her own need, after demolition and new construction. Apart from it, the appellate court has also endorsed the finding recorded by the Prescribed Authority on the issue relating to the building being in dilapidated condition. While deciding point no.2, the appellate court has observed that the respondent-landlady would suffer greater hardship if the release application is not allowed in her favour. In pith and substance, the order passed by the appellate court amounts to release of the disputed premises both under the provisions of Section 21(1)(a) as well as under Section 21(1)(b) of the Act.
Learned counsel for the petitioner submitted that in case the release application was under Section 21(1)(a), the building having been purchased by the respondent by sale deed dated 21.8.2012, notice under the first proviso to sub-section (1) of Section 21 was mandatory but which was not given, therefore the release application was not maintainable.
In Martin and Harris Ltd. vs. VIth Additional District Judge, 1998 (1) SCC 732 the Supreme Court has held that the provision relating to notice under the first proviso to Section 21(1)(a) could be waived by the tenant being for his benefit only. It has been observed that where the application for eviction was filed by the landlord before expiry of six months' notice but the tenant did not press for rejection of the release application as premature, it shall be deemed that the tenant has waived his right under the proviso. The relevant observation in this regard are as under :-
“13. ............The ground raised by the landlord under Section 21(1) (a) would be personal to him and similarly the defence taken by the tenant would also be personal to him. Six months' breathing time is given to the tenant after service of notice to enable him to put his house in order and to get the matter settled amicably or to get alternative accommodation if the tenant realises that the landlord has a good case. This type of protection to the tenant would naturally be personal to him and could be waived.
….................
Consequently it must be held that the provision for six months' notice before initiation of proceedings under Section 21(1) of the Act, though is mandatory and confers protection to the tenant concerned, it can be waived by him. On the facts of the present case there is no escape from the conclusion that the appellant, for the reasons best known to it, consciously and being alive to the clear factual situation that the suit was filed on the ground prior to the expiry of six months' notice, did not think it fit to pursue that point any further and on the contrary joined issues on merits expecting a favorable decision in the suit and having lost therein and got an adverse decision did not think it fit even to challenge the decision on the ground of maintainability of the suit while filing an appeal and argued the appeal only on merits and only as an afterthought at the stage of writ petition in the High Court such a contention was sought to be taken up for the first time for consideration. On the facts of the present case, therefore, it must be held that the appellant had waived that contention about the suit being premature having been filed before the expiry of six months from the date of the suit notice.
14. Apart from waiver the appellant was estopped from taking up such a contention as the respondent, on account of the aforesaid contention of the appellant, had irretrievably changed his position to his detriment and lost an opportunity of seeking leave of the Court to withdraw the suit with liberty to file a fresh suit, as seen earlier. The second point for consideration is, therefore, answered in the negative, in favour of the respondent-landlord and against the appellant.
(emphasis supplied) The Supreme Court has reaffirmed the judgement in Martin and Harris in its subsequent judgement in Nirbhai Kumar vs. Maya Devi and others, 2009 (5) SCC 399. Once again in the said judgement, the Supreme Court has quoted with approval various paragraphs from Martin and Harris. The effect of the above two judgments is that though notice by a purchaser-landlord, before filing of release application is mandatory as per proviso to sub-section (1) of Section 21 but since it is for the benefit of the tenant therefore it could be waived. It also acts as estopple preventing the tenant from taking the plea at later stages of the proceeding as observed in paragraph 14 in Martin and Harris.
In Mahesh Chandra vs. Piyush Kumar Agarwal, 2012 (2) ARC 376, this Court has held that when plea of want of notice is not taken in the written statement, the tenant shall be deemed to have waived the protection granted to him in this regard.
In the instant case, except for mentioning that the respondent became owner and landlord since 21.8.2012, the petitioner did not take any plea that the release application was premature or should be dismissed as not maintainable because of want of notice under the first proviso to sub-section (1) of Section 21. Therefore, this Court does not find any reason to interfere with the impugned orders on the ground that notice under the proviso was not given.
Learned counsel for the petitioner further submitted that the Prescribed Authority only recorded a finding regarding building being in dilapidated condition and thereafter it proceeded to decide the comparative hardship of the parties. It is submitted that without returning any finding on the issue of bonafide need, it erred in allowing the release application.
As already observed above, the Prescribed Authority has not adequately dealt with the issue relating to bonafide need of the respondent-landlady. However, when the said issue was raised before the appellate court, the appellate court has examined the same in considerable depth and has thereafter held that the need of the respondent-landlady for newly constructed building being used by herself and members of her family is bonafide and genuine. An appeal is continuation of the original proceedings. The appellate court having returned a specific finding with regard to bonafide need, which learned counsel for the petitioner is unable to assail, this Court is of considered opinion that the alleged defect in the order of the Prescribed Authority stands duly cured.
No other submission has been made by learned counsel for the petitioner.
The petition lacks merit and is dismissed.
At this stage, counsel for the petitioner prayed for six months time being granted to vacate the disputed premises to which learned counsel for the respondent-landlady has no objection.
Accordingly, the petitioner is granted six months time to vacate provided he furnishes an undertaking within four weeks from today before the Prescribed Authority that he would handover peaceful possession of the disputed premises to the respondent-landlady on or before the expiry of period of six months and pays rent/damages at the rate of Rs.1000/- per month for period of six months in advance within four weeks from today, failing which the protection granted hereby would stand vacated automatically and the respondent-landlady would become entitled to execute the release order. Any amount, already deposited, shall be adjusted.
Order Date :- 22.2.2019 skv (Manoj Kumar Gupta, J.)