Heard learned counsel for the parties and perused the record.
This writ petition is directed against the judgment and order dated 16.1.2010 passed by Prescribed Authority, Bijnor in P.A. Case No. 4 of 2006, appended as Annexure-10 to the writ petition, and order dated 22.1.2011 passed by Additional District Judge, Court No. 2, Bijnor in Rent Control Appeal No. 03 of 2010, appended as Annexure-16 to the writ petition by which the release application filed by the respondent under section 21 (1) (a) of U.P. Act No. 13 of 1972 has been allowed by the Prescribed Authority and the said appeal filed by the petitioner has been dismissed.
The facts are that the respondent-landlord (s) filed an application under Section 21 (1) (a) of U.P. Urban Building (Regulation of Letting Rent & Eviction) Act, 1972, (hereinafter referred to as Act No. 13 of 1972) in the Court of Prescribed Authority/Civil Judge (Senior Division) Bijnor with the averments that the respondent is owner of the premises in question situate in Mohalla Ganga Nagar, Civil Lines, District Bijnor; that the said house as well as house situate towards southern of said house have been purchased by him and his brothers from one Anand Kumar Gupta by way of registered sale-deed dated 19.5.2003; that notice was given by the respondent-landlord on 30.8.2005 though his counsel to the petitioner who claims to be tenant in a house in dispute. This notice was to the effect that accommodation in the house in dispute purchased by the respondent and his brother has been partitioned amongst them by which, portion in question under the tenancy of the petitioner has come in the share of the respondent Vimal Kumar Maharshi, as such rent may be paid to him.
The petitioner contested the release application by filing his written statement denying the allegation made therein except that he was tenant in a portion of the house in question. An objection was also taken by him to the effect that the release application filed by the landlord was misconceived and not maintainable as it has been filed by concealing material facts. Reply to the objection in the written statement was also filed by the respondent-landlord.
The landlord filed his own affidavit in evidence reiterating the averments made in the release application and also filed affidavits of one Vachan Singh and Sumit Jain in support of his case. On the other hand, the petitioner-tenant filed his affidavit as well as affidavit of one Chaudhary Surveer Ssingh, Mukesh and Brijbala Sharan in support of his case.
It appears that an application dated 7.7.2008 (paper no. Ga-75) was filed by the petitioner-tenant for permitting him to cross-examine the respondent and his witnesses on the ground that the affidavits filed by them were incorrect. This application was rejected by the Prescribed Authority by his order dated 15.9.2008 holding that proceedings in release application are summary in nature and there is no provision for oral and cross-examination of witnesses and as such release application is to be decided on the basis of evidence filed on affidavits by respective parties. The petitioner then moved amendment application which was also rejected. Subsequently, an application was moved by him on 22.5.2009 (paper no. 105 Ga) inter alia that notice dated 30.8.2005 had never been served upon him and that service of notice upon the petitioner is fake, in collusion with the postman, and as such signatures on the notice requires examination by hand writing experts. The said application was also rejected by the Prescribed Authority by his order dated 22.5.2009 on the same day. This application (paper no. 105 Ga) appears to have been filed when the case was fixed for final arguments.
The application dated 22.5.2009 (paper no. 105 Ga) reads thus:
fuosnu gS fd mijksDr okn esa vkt fnukad & okLrs cgl izfroknh fu;r gS] ojoDr rS;kjh cgl bl ckr dk bYe gqvk fd izfroknh ij uksfVl dh rkehy xyr rkSj ls n'kkZ;k tkuk izkFkhZ ds izfrokn i= esa vfHkdfFkr fd;k x;k gS] rkehy ds lEcU/k esa ,DuksystesUV dkMZ dkxt la0 x&10 ij izkFkhZ izfroknh }kjk dksbZ gLrk{kj ugha fd;s x;s tks gLrk{kj izkFkhZ @ izfroknh ds n'kkZ;s x;s gS og izkFkhZ ds gjfxt ugha gS] mDr gLrk{kj fuf'pr :i ls oknh }kjk okgelktxh iksLVeSu @ lfoZl dqfuUnk xyr rkSj ls QthZ rjhds ls dqV jpuk djrs gq;s cuk;s x;s gSa] ftlds lEcU/k esa ,DliVZ tkap dh tkuh vko';d gS] fygktk U;k;fgr esa dkxt la0 x&10 ij cuk;s x;s QthZ gLrk{kj izfroknh ds QksVks fy;s tkdj ,DliVZ vksfifu;u izkIr djus gsrq vknsf'kr fd;k tkuk vko';d gSA vr% izkFkZuk gS fd mijksDr rF;ksa dks n`f"Vxr j[krs gq;s U;k;fgr esa uksVl dks rkehy ,DukfytesUV dkxt la0 x&10 ij izfroknh ds dqVjfpr gLrk{kj dh tkap gsrw ,DliVZ ls QksVks djkdj fjiksVZ U;k;y; esa eaxk;s tkus gsrq rn~uqlkj vknsf'kr djus dh d`ik djsaA fnukad% 22-5-2009 izkFkhZ @ izfroknh ^^Jheku~ th ?kksj fojks/k gS fd okn esa lk{; oknh dk dh le;iwoZ lekIr gks pqdk gS rFkk okn cgl oknh fu;qDr gS oknh dh cgl Hkh gks pqdh gSA dsoy Vkyus dh fu;r ls izk0 i= fn;k tk jgk gSA vkns'k fn0 19-05-09 ds vuqikyu esa fu.kZ; ikfjr fd;k tkuk t:jh gSA g0 vLi"V fnukad 22-05-09** While rejecting the said application, the Court in its order dated 22.5.2009 noted the fact that from perusal of record it is apparent that long period has elapsed after claim of service of notice and thereafter the parties have appeared in the Court; that petitioner-tenant has filed his written statement and also evidence on record. The Court while rejecting the application moved on behalf of the respondent/landlord held that in the circumstances, the application for examination of signatures was not justified at that stage. The Court below was of the opinion that by this application the petitioner wanted to delay the proceedings and if he wanted to challenge the service of notice then he ought to have raised the issue at the relevant time and not after the close of the arguments by the counsel for the landlord.
The order dated 22.5.2009 reads thus:
^^i=koyh is'k gqbZA idkj ij i{kdkjksa ds fo}ku vf/koDrk mifLFkr vk;sA vf/koDrk izfroknh }kjk izkFkZuk i= x&105 bl vk'k; ls izLrqr fd;k x;k gS fd rS;kjh ds oDr mUgsa bl ckr dh tkudkjh gqbZ gS izfroknh ij uksfVl dh rkehyh xyr :i ls n'kkZ;h x;h gS blds vfrfjDr dkxt la0 x&10 ij izfroknh }kjk gLrk{kj ugha fd;s x;s gSaA tks gLrk{kj izkFkhZ ds n'kkZ;s x;s gS og gjfxt izkFkhZ @ izfroknh ds ugha gSaA mlds gLrk{kj QthZ rkSj ls dwVjpuk dj cuk;s x;s gSaaA izkFkhZ @ izfroknh }kjk izkFkZuk dh x;h gS fd bl lEcU/k esa ,DliVZ ls tkap djk;h tkuh vko';d gSA vr% dkxt la0 x&10 ij izkFkhZ @ izfroknh ds gLrk{kj gsr ,DliVZ ls tkWap djkdj fjiksVZ U;k;ky; esa eaxk;s tkus dh d`ik djsaA vf/koDrk oknh }kjk izkFkZuk i= ij vkifRr x&106 izLrqr dh x;h gS ftlesa ;g dgk x;k gS fd dkxt la0 x&10 ij izfroknh ds gLrk{kj dh tkWap gsr ,DliVZ ls QksVks djkdj fjiksVZ eaxk;s tkus gsrq tks izkFkZuk i= izfroknh }kjk izLrqr fd;k x;k gS og fujk/kkj gSA izfroknh us 12-3-2007 dks viuk c;ku rgjhjh nkf[ky fd;k gSA izfroknh i= esa mlus x&10 ij vius gLrk{kj gksus ls bUdkj fd;k gSA mlds }kjk izLrqr 'kiFk i= x&55 esa Hkh gLrk{kj gksus ls bUdkj ugha fd;k x;k gSA lp rks ;g gS fd izfroknh xyr rF;ksa ds vk/kkj ij okn dks rckyr esa Mkyus ds fy, izkFkZuk i= izLrqr dj jgk gS tcfd nksuksa i{kdkjksa dh lk{; lekIr gksdj cgl lquh tk pqdh gSA vc izfroknh iqu% okn dh dk;Zokgh dks foyfEcr djus ds mn~ns'; ls fjvksfiu djkuk pkgrk gSA vr% mDr izkFkZuk i= Lohdkj u fd;k tk;sA mHk; i{kksa dks lquk rFkk i=koyh dk ifj'khyu fd;kA i=koyh ds ifj'khyu ls Li"V gS fd izfroknh ij rkehyk gq;s ,d yEck vlkZ xqtj pdk gSA izfroknh us viuh rkehyk ds mijkUr U;k;ky; esa mifLFkr gksdj viuk izfrokn i= 'kiFk i= nksuksa izLrqr dj fn;s gSaA i=koyh bl le; cgl ds izdze ij fu;r gS rFkk oknh dh cgl lquh tk pqdh gS izfroknh bl rjg ds izkFkZuk i= ij ckj&ckj dj fu.kz; dh izfdz;k lEikfnr ugha gksus nsuk pkgrk gSA blds vykok izfroknh }kjk mDr izkFkZuk i= izLrqr djus dk vkSj dksbZ edln dfFkr ugha gksrk gSA ;fn izfroknh dks rkehyh ds lEcU/k esa fuosnu djuk Fkk rks leqfpr izdze ij djuk pkfg;s Fkk vc ;g izdze izkFkZuk i= izLrqr djus dh ugha gSA rn~uqlkj izkFkZuk i= x&105 fujLr fd;k tkrk gSA i=koyh okLrs cgl fnukad 27-5-2009 dks is'k gksA g0 viBuh;
flfoy tt lh0fM0** The Prescribed Authority thereafter allowed the release application vide his order dated 16.1.2010. Aggrieved by the aforesaid order dated 16.1.2010, the petitioner preferred Rent Control Appeal No. 03 of 2010 in the Court of the District Judge, Bijnor. During the pendency of said appeal, landlord/ Vimal Kumar Maharshi died and his legal heirs and representatives were substituted at that stage in his place in the appeal. The petitioner appears to have thereafter moved an application (paper no. Ga-26) in the appeal for appointment of Commissioner and inspection of house in dispute regarding availability of accommodation which has also been rejected by the Additional District Judge by his order dated 13.8.2010. Thereafter, the Additional District Judge, Court No. 2, Bijnor by his judgment and order dated 22.1.2011 dismissed the appeal of the petitioner.
The orders impugned are challenged by the petitioner on the grounds that order of the court below are erroneous, arbitrary, illegal and deserves to be set aside for the reason that notice is not as contemplated under the first proviso to Section 21 (1) (a) of the Act. In support of this contention, learned counsel for the petitioner has relied upon the following judgments:
(i) 1989 (1) ARC 277, Paragraphs 9 to 17.
(ii) 1981 ARC 530 SC, Paragraph 2 The second limbs of his argument is that three years must have elapsed from the date of purchase of building and six months notice is mandatory and that this argument of his is fortified by the following judgments:
(i) 1998 ARC 109, Paragraphs 6, 7, 11, 12 and 12-A.
(ii) 2001 (2) ARC 554 SC Paragraph 10
(iii) 2009 (1) ARC 767, paragraphs 3, 4 and 7.
The next contention of the learned counsel for the petitioner is that according to the case of the respondent/landlord, the landlord claimed that property situate at Mohalla Ganga Nagar, Civil LInes, Bijnor had been purchased by the applicant (Sri Vimal Kumar Maharshi), Kamal Kumar Maharshi, Achal Maharshi and Vikal Maharshi by way of sale-deed dated 19.5.2003; that in the part of the property which fell in the share of late Vimal Kumar Maharshi; that there had been a partition and the property in dispute in which the petitioner is the tenant has come into the share of the respondent/landlord; and that vide notice dated 30.8.2005, the petitioner/tenant was informed that rent and the municipal taxes in respect of the accommodation in dispute be paid to the respondent by the petitioner.
It is stated that the alleged notice dated 30.8.2005 is vague, misconceived and defective and on the basis of which release application could not be filed, as such, the release application is liable to be rejected. A perusal of the said notice clearly shows that the alleged notice dated 30.8.2005 is no notice as contemplated in first proviso of section 21 (1)(a) of U.P. Act No. 13 of 1972. In this regard a specific plea has been taken by the petitioner in the written statement and also the same is pressed before the Prescribed Authority and no specific finding in this regard has been given by the Prescribed Authority and in the memo of appeal, the specific plea has been taken by the petitioner before the appellate court which has also been not considered, but though it had been pressed by the petitioner. Even otherwise the release application is not maintainable in absence of notice as contemplated in the aforesaid provision and that the said notice dated 30.8.2005 is not a notice in accordance with the requirements contemplated in proviso to Section 21 (1) (a) of the Act.
In support of his case, learned counsel for the petitioner has placed reliance upon paragraphs 4, 7, 9, 11, 12 and 12-A of the judgment rendered by the apex court in 1998 (1) ARC 109 (SC): Martin & Harris Ltd. Vs. VIth Additional District Judge & others, wherein the Supreme Court has held that the requirement of six month's notice is mandatory and the release application could be filed only after lapse of three years from the date of purchase. The landlord is to give a notice not less than six months before moving an application under Section 21 (1) (a) though the notice may be given even before the expiration of the aforesaid period of three years.
Counsel for the petitioner has relied upon paragraph 10 of the judgment rendered in 2001 (2) ARC 554 (SC): Anwar Hasan Khan Vs. Mohammad Shafi and others. This judgment, according to the petitioner is to the effect that if the release application is filed after a lapse of three years, service of notice of six months in that event is not required and that the earlier judgment rendered in Martin & Harris Ltd. Vs. VIth Additional District Judge & others (supra) was not considered.
It is argued that in 2009 (1) ARC 767: Nirbhai Kumar Vs. Maya Devi & others, it is held that the decision in Martin and Harris Ltd. (supra) case expresses the correct view, but the said decision does not appear to have been placed before the Bench which heard Anwar Hasan Khan's case 2001 (2) ARC 554 (SC) and that from a bare perusal of the judgment of Nirbhai Kumar reported in 2009 (1) ARC 767 (supra), it is apparent that requirement of six month's notice as well as filing of release application after three years is mandatory.
It is submitted that the aforesaid three judgments are with regard to requirement of six month's notice and filing of release application after three years from the date of purchase. They are not with regard to the nature of notice as contemplated in the proviso. He submits that from a bare reading of proviso and aforesaid all the three judgments and other judgments, referred hereinafter, for maintaining a release application by a purchaser of a tenanted premises, the requirements which are necessary, are that:-
(i) A period of three years has elapsed since the date of purchase of the building in question by the landlord.
(ii) Six month's period has expired from the date of the notice as on the date of application under the said proviso. However, such notice may be given even before the expiration of the aforesaid period of three years.
(iii) The landlord has given notice (aforesaid six month's notice) in that behalf to the tenant, the notice must be as contemplated under the said proviso.
According to the counsel for the petitioner, the question which arises for consideration of this Court is with regard to the nature of the alleged notice dated 30.8.2005 as contemplated under the aforesaid first proviso. He has submitted that the said notice dated 30.8.2005 is not in the nature as contemplated under the aforesaid proviso; that the apex court in the case of Smt. Nazuk Jahan and others vs. Additional District Judge and others reported in 1981 ARC 530 (SC) has held that the notice contemplated by the aforesaid proviso cannot be a casual or oral request to the tenant but a formal demand ordinarily in writing and clearly insisting on vacant possession after the requisite period; that another judgment in this regard is of Abdul Zabbar Vs. VIth Additional District Judge, Gorakhpur and others 1989 (1) ARC 277, wherein interpreting the first proviso to Section 21 (1) (a), it has been held that the phrase "in that behalf" in the proviso is very significant. It does not mean a notice or information to the tenant regarding the factum of the purchase of the property but a notice in regard to the intention of the purchaser that the tenant want to move an application for release under section 21 (1) (a) of U. P. Act No. 13 of 1972. Therefore, notice should be specific, intimating the tenant that the purchaser bonafidely required the building in question and if he does not vacate then the release application shall be filed against him. In that case also only an intimation with regard to the purchase had been given as in the present case and that Court in that case had held the notice is not contemplated under the first proviso to Section 21 (1) (a) of U.P. Act No. 13 of 1972, as such, in the similar circumstances, the release application is not maintainable in law, as case of the petitioner is squarely covered by the said judgments.
It is argued that counsel for the respondent has tried to interpret the said judgment to the effect that after expiry of three years period, the release application could be filed and no notice is required which is not the spirit of Nirbhay Kumar's case. Once it has been held by the apex court that the Martin and Harris expresses correct view of law then requirement of notice is mandatory. However, Nirbhay Kumar's case also does not deal with the nature of the notice as contemplated under section 21 (1) (a) of U.P. Act No. 13 of 1972 and only deals with the requirement of expiry of three years period and requirement of giving six month's notice.
The petitioner submits that the alleged notice dated 30.8.2005 has never been served upon him and the service of the notice as alleged by the respondent is malafidely in collusion with the postman which compelled the petitioner to move an application before the Prescribed Authority to the effect that his alleged signature on the acknowledgement be got examined by a handwriting expert which application has beewas rejected by the Prescribed Authority by its order dated 22.5.2009.
It is stated that the petitioner has right to move application (Annex. 12) in appeal also for getting the said signatures examined by hand writing expert and to challenge the same that the appellate court by order dated 26.7.2010 (Annexure no. 13) has incorrectly held that it would be considered at the time of final judgment; that in the final judgment a perverse finding has been recorded by the appellate court; that the rejection of the application by the Prescribed Authority has not been challenged in appeal or revision, as such the order has become final. It is further stated that in these circumstances, the said observation of the appellate court is wholly erroneous in law inasmuch as the order passed by the Prescribed Authority was in the nature of interlocutory order and the same could be challenged in the appeal against final judgment; that the observations of both the courts below to the effect that in the transfer application before this Court there is a reference of the alleged notice dated 30.8.2005 which was with regard to the pleadings of parties only and that the notice dated 30.8.2005 has been filed by the respondent before the Prescribed Authority on 14.8.2006 when the release application was filed, hence in view of it, the Courts below have completely failed to consider that the alleged notice dated 30.8.2005 has been served on the petitioner in accordance with law.
It is then submitted that the building purchased from Anand Kumar Gupta is in two parts, one is under tenancy of the petitioner and another is under tenancy of applicant-respondent namely Sri Vimal Kumar Maharshi under the allotment orders; that petitioner had taken specific plea in his written statement to the effect that it is incorrect that after partition of the tenanted premises of the portion under the tenancy came into the share of the applicant who was also himself a tenant in the southern portion of the building, consisting of five big rooms, two Varandah, one big court-yard about 200 sq. yards and one room at first floor which is covered by old tin shed; that these facts have been concealed by the applicant in the release application as such it was not liable to be entertained; that it is clear from these averments that he is the tenant of the southern part of the house and the averments of the applicant that he has purchased the whole house by way of sale-deed dated 19.5.2003 along with his three brothers does not come to his rescue inasmuch as he has become co-owner of 1/4th share of the whole of the house including the part of the house which is under tenancy of the respondent and he has been remained tenant of the 3/4th part of the said part of the building.
It is also submitted that the burden was on the respondents to prove that he had surrendered the tenancy and intimated the vacancy to the District Magistrate as required by sections 15 and 16 of U.P. Act No. 13 of 1972, but there is nothing on record in this regard. Therefore, the theory of partition set up by the landlord is neither proved nor established. As regards, number of the family members are concerned, it is stated that these are only four members in the family of the respondent i.e. wife of Sri Vimal Kumar Maharshi, two daughters and one son for whom the accommodation in their possession is sufficient and the landlord has no bonafide need of the premises in dispute; that the alleged bonafide need is not in existence and imaginary. The brother of the applicant namely Vimal Kumar Maharshi does not come within definition of the family as defined in section 3(g) of U.P. Act No. 13 of 1972. Event otherwise both the parties know the case in this regard also. Hence in the aforesaid facts and circumstances, the orders impugned in the writ petition are liable to be quashed and the release application deserves to be rejected with costs throughout.
Per contra learned counsel for the respondent submits that the argument of the counsel for the petitioner that the notice under section 21 (1) proviso 1 has not been served upon the tenant, is incorrect as the notice dated 30.8.2005 was duly served upon the tenant. In this regard the reference is made to paragraph 5 of the written statement and the affidavit of the petitioner appended as Annexure-5 wherein it is also not averred that the address upon which the notice was sent is incorrect.
The application for release under section 21 (1) (a) was thereafter moved on 14.8.2006 after three years from the date of purchase of the accommodation in dispute i.e. on 16.5.2003 and after six months from the date of service of notice as such the provision of the proviso was fully complied with.
It is stated that notice dated 31.8.2005 was in fact under the proviso to Section 21 (1) is not for terminating the tenancy under section 106 of Transfer of Property Act and that the tenancy stood determined under section 21 (6) of the Act by operation of law on expiry of a period of one month from the date of the order of eviction as the notice under the proviso is only an intimation to the tenant and that no format is prescribed under the Act and Rules for the said notice. According to his contention, the landlord, therefore, can move an application after three years from the date of purchase and it may be served before expiry of the three years period.
It is further argued that the judgment relied upon by the petitioner in the case of Smt. Nazuk Jahan & others reported in ARC 1981 page 530 is not applicable to the facts and circumstances of the present case. In the aforesaid matter, complete facts are not on record and the Supreme Court in that judgment found that the question of legality of the notice in the trial court was not raised. In these circumstances this judgment has not been relied on the later judgment by the Supreme Court wherein it has been held that the notice under the proviso is not a notice under Section 106 of the Transfer of Property Act. The Supreme Court in the case of Nand Ballabh Gurnani vs. Smt. Maqbool Begum reported in ARC 1981 page 516 (SC), in paragraph 6 held that "the relevant proviso prohibits Court from entertaining a petition for release of accommodation within three years from the date of purchase and not from the date of registration of sale-deed."
The notice annexed as Annexure No. 2, clearly stipulates informing the tenant that the property has been purchased by the respondent and in partition the said property came in the share of the respondent-landlord as such rent & taxes be paid to him. As such, this is a sufficient notice under the proviso of Section 21 (1) (a). It is stated that the trial court has recorded a finding that the notice was duly served upon the petitioner which has also been informed by the appellate court.
Regarding the scope of the first proviso under Section 21 (1) (a) of the Act, it was contended that three years period provided under the proviso is a sort of moratorium intended for the tenant's protection and after expiry of three years period the protection given to the tenant has no further relevance. In this regard the reliance has been placed on paragraphs 5 and 6 of the judgment reported in ARC 1978 page 499 & 2009 (1) ARC 767.
It is further submitted on behalf of the respondent that for moving an application by a landlord under section 21 (1) (a), who has not purchased the property occupied by the tenant, it is not necessary that the landlord must serve a notice upon the tenant; that the proviso only puts a restriction upon the rights of such a landlord who has purchased the property occupied by a sitting tenant for three years and that by serving a six month's notice, the landlord who has purchased an accommodation can move an application under section 21 (1) (a) of the Act. The said notice of six months may be served by him even before expiry of the three years period from the date of purchase and after three years period a landlord who has already served six months notice is free to move an application under section 21 (1) (a) as after lapse of three years period the aforesaid first provision to the section has no application and only six months notice is required.
As regards bonafide need it is submitted that both the courts below have as a matter of fact found that the need of the landlord is bonafide and genuine and the landlord required accommodation in dispute under tenancy of the petitioner. The trial court while deciding issue no. 1 has recorded a finding that the need of the landlord is bonafide.
The Court on perusal of record further found that comparative hardship which is suffered by the landlord would be greater than suffered by tenant and that the tenant has not given any evidence to the effect that he had made efforts for searching out an alternate accommodation during pendency of litigation. Relying upon the case of Jagdish Prasad vs. Additional District Judge, Kanpur & others reported in ARC 1993 (2) 63 and upon Sidhanath Shukla vs. J.S.C.C. (Prescribed Authority) Lucknow & others reported in 2008 (70) ALR 539, the Court has recorded a categorical finding that where the tenant has not made any effort for searching out an accommodation during pendency of litigation, he has no right to raise the question of bonafide need or comparative hardship.
The Court with regard to six months' prior notice under section 21 (1)(a) held that the case set up by the tenant that he was not served with the notice is incorrect and against the material on record. Reference has also been made by the Court to paper no. Ga-125 which is an application for transfer. In paragraph 5 of the said transfer application, Vineet Kumar pairvikar of Preetam Singh has admitted that notice dated 30.8.2005 with respect to vacation of accommodation in disputed was received and in view of the admission the tenant is not entitled to any relief.
The findings are thus:
foi{kh ds fo}ku vf/koDrk }kjk izLrqr okn dh iks"k.kh;rk ds lEcU/k esa rdZ izLrqr djrs g, dgk x;k gS fd /kkjk&21 ¼1,½ ;w0ih0,DV ua0 13 lu~ 1972 ds v/khu okn nk;j djus ds iwoZ 6 ekg dk uksfVl fn;k tkuk vko';d gSA izkFkhZ }kjk foi{kh dks fookfnr edku ds lEcU/k esa okn nk;j djus ds iwoZ dksbZ uksfVl ugha fn;k x;k tks uksfVl fnukad 30-8-2005 izkFkhZ }kjk vius izkFkZuk i= esa nsuk dgk gS og foi{kh dks dHkh izkIr ugha gqvkA bl lEcU/k esa foi{kh }kjk vius izfrokn i= o vius lk{; esa Li"V :i ls dgk x;k gS fd izkFkhZ dh vksj ls dksbZ uksfVl fnukad 30-802005 mls dHkh izkIr ugha gqvkA ,slh fLFkfr esa pwafd foi{kh dh /kkjk&21 ¼1,½ ;w0ih0 ,DV uEcj 13 lu~ 1972 ds v/khu vkKkid uksfVl izkIr ugha gqvkA blfy, izLrr okn iks"k.kh; ugha gS vkSj blhfy, [kkfjt fd, tkus ;ksX; gSA bl lEcU/k esa foi{kh ds fo}ku vf/koDrk }kjk vius ekeys ds leFkZu esa egsUnz iky flag cuke f}rh; vij ftyk tt nsgjknwu vkSj vU; ,0vkj0lh0 1993 ,0vkj0lh0 1993 ¼1½ isr 210 ds ckn dk gokyk fn;k gSA ftlesa ekuuh; mPp U;k;ky; }kjk bl vk'k; dk fl)kUr izfrikfnr fd;k x;k gS fd okn nk;j djus ds 6 ekg iwoZ uksfVl fn;k tkuk /kkjk&21 ¼1,½ ds rgr vkKkid gS rFkk mDr vkKkid izkfo/kku dk vuqikyu ugha djus ij /kkjk&21 ¼1,½ ;w0ih0 ,DV uEcj&13 lu~ 1972 ds v/khu izLrqr fd;k x;k izkFkZuk i= iks"k.kh; ugha gS A bl laca/k esa i=koyh dk voyksdu djus ls Li"V gS fd foi{kh dh vksj ls vius izfroknh i= o vius lk{; esa bl vk'k; dk dFku fd;k x;k gS fd mls uksfVl fnukad 30-8-2005 dHkh izkIr ugha gqvkA bl laca/k esa izkFkhZ ds fo}ku vf/koDrk }kjk i=koyh ij nkf[ky dkxt la[;k x&129 dh vksj U;k;ky; dk /;ku vkd`"V djk;k x;kA dkxt la[;kx&129 flfoy fofo/k LFkkukUrj.k izkFkZuk i= la[;k&[email protected] ds lkFk ekuuh; mPp U;k;ky; esa nkf[ky 'kiFk i= dh izfr gS ftlds iSjk 5 esa foi{kh izhre flag fo'uksbZ ds iSjohdkj fouhr dqekj }kjk nkf[ky 'kiFk i= ds iSjk 5 esa Li"V :i ls bl rF; dks Lohdkj fd;k gS fd fookfnr edku ds lEcU/k esa izkFkhZ dks uksfVl fnukad 30-8-2005 dks fookfnr edku dks [kkyh djus ds lEcU/k esa Hkstk x;k FkkA bl izdkj ;g Lohd`r :i ls lkfcr gS fd /kkjk&21 ¼1,½ ;w0ih0 ,DV uEcj&13 lu~ 1972 ds v/khu micfU/kr vkKkid uksfVl foi{kh }kjk Lo;a fookfnr edku dks [kkyh djus ds lEcU/k esa izkIr fd;k tkuk Lohdkj fd;k x;k gSA rFkk foi{kh dksbZ ykHk mDr rdZ ls izkIr djus dk vf/kdkjh ugha gS fd mls izkFkhZ uksfVl ugha fn;k x;kA mijksDr lk{; dk fo'ys"k.k djrs le; esjs }kjk ;g vo/kkfjr fd;k x;k gS fd fookfnr edku dh izkFkhZ dks ln~Hkkfod vko';drk gS rFkk rqyukRed dfBukbZ Hkh izkFkhZ ds i{k esa gSA ,slh n'kk esa izkFkhZ dh vksj ls izLrqr fd;k x;k izkFkZuk i= vUrxZr /kkjk&21 ¼1,½ ,DV uEcj 13 lu~ 1972 Lohdkj fd, tkus ;ksX; gSA izLrqr ekeys ds rF;ksa ,oa ifjfLFkfr;ksa dks n`f"Vxr j[krs g, foi{kh dks edku [kkyh djus ls gksus okyh {kfr dks ns[krs gq, fookfnr Hkou dk 2 o"kZ dk fdjk;k ckrkSj {kfriwfrZ ds :i esa foi{kh dks fnyk;k tkuk U;k;ksfpr gksxkA vkns'k izkFkhZ dh vksj ls izLrqr fd;k x;k izkFkZuk i= vUrxZr vkns'k 21 ¼1,½ ;w0ih0 ,DV uEcj 13 lu~ 1972 ds v/khu Lohdkj fd;k tkrk gSA foi{kh dks funsZf'kr fd;k tkrk gS fd og bl fu.kZ; ds fnukad ls 30 fnu ds vUnj fookfnr Hkou dk n[ky izkFkhZ dks gLrkUrfjr dj nsa rFkk izkFkhZ foi{kh dks crkSj {kfriwfrZ ds :i esa 2 o"kZ dk fdjk;k eq0 [email protected]& :i;s vnk djsA fnukad 16-01-2010 g0 viBuh;
¼/khjsUnz dqekj½ flfoy tt lh0fM0 fctukSjA** The lower appellate court also while deciding issue no. 2 has recorded a finding that need of the landlord for the accommodation in dispute is bonafide. In this regard, the Court held thus:
^^21- tgkWa rd rqyukRed dfBukbZ dk iz'u gS tc ,d ckj edku ekfyd dh ln~Hkkoh o okLrfod vko';drk lkfcr gks tkrh gSA rc ogkWa rqyukRed dfBukbZ dksbZ egRo ugha j[krh ;fn fdjk;snkj dks ,slh fLFkfr esa rqyukRed dfBukbZ Hkh gks] rc Hkh bl vk/kkkj ij izkFkhZ edku ekfyd ds izkFkZuk i= dks fjLr ugha fd;k tk ldrk tSlk fd txnh'k izlkn cuke uoe vij ftyk tt dkuij ,0lh0vkj0 1993 ¼2½bykgkckn ist 63 esa Hkh vfHkfu.khZr fd;k x;k gSA blds vykok Hkh izkFkhZ ftldh vc e`R;q dks pqdh gS] dh iRuh mldh nks iqf=;kWa o ,d iq= gS rFkk rhuksa cPps v/;;ujr gSA iz'uxr Hkou ds vykok jgus ds fy, muds ikl dksbZ vkSj Hkou fctukSj ,oa m0iz0 esa dgha ij Hkh ugha gSA tcfd vihykFkhZ ds ikl mlds xkWao ikyuiqj esa viuk edku gSA vr% rqyukRed dfBukbZ Hkh vihykFkhZ dh vis{kkizkFkhZ dh vf/kd lkfcr gksrh gSA 22- bl ekeys esa fnukad 14-8-2006 dks izkFkhZ }kjk ,DV [email protected] dh /kkjk 21 ¼1½ ¼,½ ds vUrxZr izkFkZuk i= izLrqr fd;k x;k Fkk ftldh rkehy foi{kh @ vihykFkhZ ij gksus ds i'pkr mlds }kjk viuk izfrokn i= 28-2-2007 dks fopkj.k U;k;ky; esa izLrqr fd;k x;k Fkk] rc ls vc rd fopkj.k U;k;ky; esa eqdnek yfEcr jgus ds nkSjku o vihyh; U;k;ky; esa vihy yfEcr jgus ds nkSjku izkFkhZ oSdfYid Hkou dh ryk'k dk dksbZ iz;Ru ugha fd;k x;kA blls Hkh rqyukRed dfBukbZ vihykFkhZ dh u gksdj izkFkhZ dh lkfcr gksrh gSA 23- vr% mijksDr foLr`r foospuk ds i'pkr eSa bl fu"d"kZ ij igqaprk gwWa fd izkFkhZ dh iz'uxr Hkou ds fy, vko';drk ln~Hkkoh] okLrfod o rhoz gS rFkk iz'uxr Hkou [kkyh u gksus dh fLFkfr esa mls foi{kh @ vihykFkhZ ds eqdkcys vR;f/kd rqyukRed dfBukbZ gksxhA vr% bl lEcU/k esa fo}ku fopkj.k U;k;ky; }kjk fn;k x;k fu"d"kZ iw.kZ:i ls fof/k rF; o lk{; ij vk/kkfjr gSA vr% ;g fopkj.k fcUnq rnkulkj fuLrkfjr fd;k tkrk gSA 24- mijksDr foospuk ds i'pkr eSa bl jSUV dUV~ksy vihy esa dksbZ cy ugha ikrk gwWa blfy, ;g vihy [kkfjt gksus ;ksX; gSA vkns'k ;g jsUV dUV~ksy vihy lO;; [kkfjt dh tkrh gSA LVs vkns'k fnukad 17-2-2010 fjDr fd;k tkrk gSA fnukad 22-1-2011 g0 viBuh;
¼jktsUnz dqekj] 11½ vij ftyk tt dksVZ ua0 2] fctukSjA** It is then submitted that both the Courts below have also recorded finding regarding hardship in favour of the petitioner and that in view of the concurrent finding of fact regarding bonafide need and hardship, these findings of bonafide need and hardship, this question of fact is not open to challenge in the petition unless the said findings are shown to be perverse or against the material on record.
As regards, the argument regarding service of notice raised by counsel for the petitioner, it is submitted on behalf of the landlord that the notice was sent by registered post and has been found as a matter of fact to have been duly served upon the petitioner for the reason that there is no denial of signatures by the tenant in his written statement on record on the acknowledgement before the Courts below.
It is lastly submitted that as regards surrender of tenancy, a bare perusal of the written statement and the affidavits filed in evidence on behalf of the petitioner-tenant clearly establishes that there is no case regarding surrender of tenancy taken by him in court below. The said point have never been raised before the courts below, as such, the petitioner cannot raise this issue now in the writ petition. Therefore, the petition is liable to be dismissed with costs.
It is then submitted that paragraph 6 of the judgment of apex court in the case of Nirbhai Kumar Vs. Maya Devi and others (supra) relied upon by the petitioner is not applicable as this case is not related with regard to the nature of the notice. Further, in para 6 of the said judgment, it has been held that three years period is relevant when there is a change of ownership, meaning thereby the release application could only be filed after the elapse of three years from the date of purchase and it is also clear from the judgment that this notice is also mandatory. However, it could be given even before the expiration of period aforesaid three years. After expiry of three years period, the protection given to the tenant from being evicted has no further relevance. Thereafter it is only the question of notice and after lapse of period of three years, question of notice would also arise and if there is a six month's notice then release application could be filed.
In rebuttal learned counsel for the petitioner distinguished the judgments relied upon by the respondent. In this regard he submits the decisions in
(i) 1978 ARC 499 (supra) is not applicable in the facts and circumstances of the present case inasmuch as in the said case, the question with regard to the nature of the notice was not involved, but the question with regard to the filing of release application after a lapse of three years is involved and in that context this Court had made observations as stated in para 5 of that judgment and ultimately held that the release application could only be filed after a lapse of three years from the date of purchase which would be from the registration of the sale-deed not from the date of execution of the sale deed. It is stated that in para 5 of the said judgment, this Court relying upon the judgment of the apex court in B.N. Sareen vs. Ajit Kumar Poplai and another reported in AIR 1966 SC 432 held that object of the provisions of section 14 (6) of Delhi Rent Control Act is that no application for recovery of possession of tenanted premises by a purchaser would lie unless a period of five years has elapsed from the date of purchase and that it appears from a bare reading of aforesaid para 5 and that there is no requirement in the Delhi Rent Control Act of giving any notice as required under section 21 (1) (a) of the U.P. Act No. 13 of 1972. In the facts and circumstances, the said decision is not applicable at all in the present case.
It is then urged that a bare perusal of para 9 of the second judgment relied upon by the learned counsel for the respondent in Udhav Ram (supra) which shows that in that case, after the purchase of the tenanted premises, the subsequent landlord had given a notice to the tenant to vacate the premises and that a second notice was also given. The arguments on behalf of the tenant in that case was that the first notice for vacating the premises did not specify six month's time and the second notice was not a valid notice as the release application was filed after elapse of the period more than six months. It is in these circumstances, the apex court held that six month's period should elapse between the issuance of notice and filing of the release application.
It is also stated that in para 6, the Supreme Court held that the landlord has given notice "in that behalf" to the tenant which has been interpreted by the High Court in Abdul Zabbar's case (supra). As regards the observation of the Apex Court in respect of the formalities, the requirement and formalities of section 106 of the Transfer of Property Act, is concerned, it is stated that the Court cannot import in the notice contemplated under the provision to section. Therefore, a notice under section 106 of the Transfer of Property Act cannot be treated as notice in the aforesaid proviso as both these sections operate in different fields. It is also apparent from the judgment wherein the apex court observed that "so hold would amount to reading words in the proviso which is clearly impermissible". As such, according to him, Udhav Ram's judgment is also not applicable in the facts and circumstances of the present case.
After hearing learned counsel for the parties and on perusal of record, it appears that admittedly the petitioner had not raised the issue disputing his signatures on the receipts of notice & A.D. i.e. regarding service of notice at the relevant time. In fact, he had not denied his signature on the notice when he filed written statement or had moved an application in this regard before the Prescribed Authority, even evidence was closed. It is only at the time of final hearing when the petitioner claims to have been struck off by inspection. Normally, the burden of proof lies upon a person who raises issue or rack up an issue not raised by him. The appellate court was right in rejecting the application of the petitioner as there was no occasion for the petitioner to permit him to rake-up this issue when the argument has already been concluded by other side. If any such permission is granted then proving of signature would require de-novo evidence and the case then again relegated to the stage of examination of witnesses. From the application (paper no. 105 Ga) filed by the petitioner, it is clear that he had knowledge about the fact regarding service of notice, but had in fact not taken this plea in his written statement. He has taken this plea during preparation of arguments. Thereafter, he changed his counsel to move the application. He moved the application only on the ground that he came to know that this plea has not been taken by his counsel. This is not a legal ground for relegating the case which after years together had come for hearing, wherein evidence etc. had been concluded by the parties. In so far as question of share of building between brother is concerned, a tenant has no right to challenge the proceedings of release as notice by co-owner is sufficient notice until and unless it is proved to the contrary that co-owner has not consented to the finding of the release application.
The question of surrender of tenancy is not at all involved in this case. The argument of the counsel for the petitioner that a portion of the building in which he was a tenant who has to first surrender his tenancy does not appeal to reason. There is also no averment in this regard by the petitioner-tenant, as such, it cannot be said that the landlord has concealed his tenancy in the release application. It may be noted that release application is filed by the landlord and the respondent Vimal Kumar Maharshi having acquired his ownership right along with his brother had right to move release application.
The Court below have categorically recorded finding of fact regarding bonafide need of accommodation for V.K. Maharshi, his wife, son and daughters. The sale-deed is on record which establishes the fact that Sri V.K. Maharshi was the landlord.
It is also proved from the record that there was a partition in which Mr. Bisnoi was a tenant. The said notice being not under Section 106 of Transfer of Property Act, but being under Section 21 (1) (a) of U.P. Act No. 13 of 1972, will not provide any aid to the arguments of learned counsel for the petitioner. The notice has given sufficient information as required under section 21 (b) of the Act regarding purchase of building by the landlord and notice as well as release application having been filed in accordance with law, has rightly been allowed by the Courts below as is apparent from the written statement filed by the petitioner that neither he has disputed his signature on the notice nor having denied receipt of the same rather appearing in the proceeding and there is no question of any examination of hand writing expert etc. in this case, particularly at the belated stage.
For all the reasons stated above, the Court is of the considered opinion that the Courts below have not committed any illegality in the impugned orders and no interference is called for quashing of the orders impugned in the present writ petition.
The writ petition is, accordingly, dismissed. No order as to costs.
Dated: 18.03.2011 RCT/-