Heard counsel for the petitioner and perused record.
The petitioner has filed this petition under Art. 226 of the Constitution challenging the validity and correctness of judgment and orders dated 31.5.2011 and 6.9.2010 passed by the Additional District Judge, court no. 14, Moradabad in Appeal No. 19 of 2010 and the Prescribed Authority respectively , by which application of the respondent landlady under section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act ), was allowed.
It appears from record that the respondent landlady purchased the building in dispute situated in Mohalla Reti Street, Moradabad in the year 1997. Thereafter, she gave a notice dated 29.9.1997 to the petitioner inter alia that he is a licensee of the shop since 1.6.1993 at the rate of Rs. 600/- per month; that his licence is terminated and was directed to handover peaceful possession of the shop to her within a period of seven days from the date of service of the notice. The petitioner preferred original suit no. 857 of 1997, in the court of Civil Judge(S.D.), Allahabad praying that he may not be evicted from the shop in question by the landlady except in accordance with law, to which effect the court passed order in the said suit.
The respondent landlady thereafter moved an application under section 21(1)(a) of the Act, which was registered as P.A. case no. 6 of 2004, for release of the shop in dispute on the ground that it was required for establishing her son in business who was unemployed after completion of his study. The application was registered as P.A. case no. 6 of 2004. On service of the notice, the petitioner contested the release application by filing his written statement and denied allegations of the landlady made in the release application and stated that need of the landlady was neither genuine nor bonafide. He also came out with the case that son of the landlady was not sitting idle but was carrying business of transport alongwith his father, who was owner of a mini truck - Tata 407, bearing registration number UP 20A 0377. It was also stated that landlady had another vacant shop in the same vicinity in which she can establish her son in business; that the petitioner had tried to get a vacant shop but was not successful in his efforts and that he had also applied before the Rent Control and Eviction Officer for allotment of shop but of no avail.
The petitioner appears to have also moved an application on 3.5.2010 for amendment in the written statement that landlady has filed release application under section 21(1)(a) of the Act without giving six month's prior notice which is mandatory. After inviting objection to it, the court below rejected the amendment application of the petitioner vide order dated 17.5.2010. Thereafter, the release application was decided by the Prescribed Authority vide its judgment and order dated 6.9.2010 holding that petitioner was tenant of the shop in question at the rate of Rs. 900/- per month; that son of the landlady was driving mini truck of his father and was not employed independently, therefore, he has a right to establish himself independently in business to augment income of his family. The court considered the fact that no evidence whatsoever was adduced by the tenant petitioner to the effect that son of the landlady was in permanent service or had income from any other independent source. The court rather came to the conclusion that the son of the landlady was married and was engaging himself as driver on the truck of his father to earn livelihood for his family and merely because he was driving the truck of his father under compulsion of circumstances would not mean that the landlady cannot think of better future for her son to establish him in independent business, hence need of the landlady was genuine and bonafide.
In so far as the alleged vacant shop of the landlady is concerned, the court further held that landlady did not have any alternative shop suitable for the business of her son and that requirement of the shop by her under the tenancy of the petitioner, was pressing, genuine and bonafide.
As regards the question of comparative hardships under section 16(2)(a) is concerned, the court after appreciation of evidence of the parties, has recorded a finding that petitioner was engaged in wholesale business of medicines and change of place would not affect his business. The court repelled the contention of the petitioner that the shop in dispute is the only source of livelihood of his family. On appreciation of the evidence, the court came to the conclusion that sons of the petitioner are in independent business in their own shops and they are not dependent upon the petitioner in any manner. On these findings, the court concluded that comparative hardships lie in favour of the landlady and not the tenant petitioner and if the shop is not released, the landlady would suffer irreparable loss which cannot be compensated in terms of money, hence tenant cannot be granted any benefit of section 16(2) of the Act.
Thereafter, considered the provisions of Rule 16 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 and case law cited by the plaintiff in Martin HerisVs. Vith A.D.J. and others( 1998(1) A.R.C.-109), wherein it has been held thus :
" That provision obviously was enacted for benefit and protection of the tenant. It is for the tenant to insist on it or to waive it. It is of course true that it is enacted to cover a class of tenants who are sitting tenants and whose premises are subsequently purchased by landlords who seek to evict the sitting tenants on ground of bonafide requirement as envisaged by Section 32 (1)(a) of Act. Still the protection available to such tenants as found in the proviso would give the tenant concerned a locus penitential to avail of it or not. It is easy to visualise that proceedings under section 21(1)(a) of Act would be between the landlord on one hand and tenant on other. These proceedings are not of public nature nor any public interest is involved therein. Only personal interest of landlord on one hand and tenant on the other hand get clashed and call for adjudication by prescribed authority....... So 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 amicably or to get alternate accommodation if tenant realise that the landlord has a good case. This type of protection to tenant would naturally be personal to him and could be waived. "
The court also relied in this regard upon the decisions rendered in Nirbhay Kumar Vs. Maya Devi ( 2009(75) A.L.R. 606 SC), Vijay Bhudoor Singh Vs. Ivth A.D.J., Etawah ( 1997(2) A.R.C.-59 and Abdul Jabbar Vs. VIIth A.D.J., Gorakhpur ( 1989(1) A.R.C.- 217), the court held that tenant petitioner has not taken any plea in his pleadings regarding service of notice under section 21 of the Act and as such has waived this plea which could not have been brought by means of amendment as he had an alternative under Order 23 Rule 3 for return of the plaint for filing it afresh. Therefore, the notice was legally given to the tenant. The Prescribed Authority thus by the judgment and order dated 6.9.2010 allowed the release application of the landlady filed under section 21(1)(a) of the Act with cost and directed the petitioner tenant to vacate the shop in question within one month and handover its peaceful possession to the landlady. The court further directed the landlady to pay a sum equal to two years rent as compensation to the tenant as provided in the proviso to section 21 of the Act.
Aggrieved by the aforesaid order of the prescribed authority, the tenant petitioner preferred Rent Control Appeal No. 19 of 2010 before District Judge, Moradabad. The said appeal was heard and decided by Additional District Judge, court no. 14, Moradabad, by the impugned judgment and order dated 31.5.2011 affirming the judgment and order of the prescribed authority, holding thus :
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ugha gS vkSj bl lEcU/k esa v/khuLFk U;k;ky; }kjk fn;k x;k fu.kZ; lgh FkkA 31- tgkWa rd rqyukRed dfBukbZ dk lEcU/k gS] ;fn yS.M ykMZ vFkok mldk okfjl etcwj gksdj vYi dky ds fy;s viuh thfodk pykus ds fy;s dksbZ dk;Z dj ysrk gS rks mls mldh thfodk dk LFkk;h lk/ku ugha ekuk tkuk pkfg;s vkSj uk gh viuh 'krksZ ds vuqlkj dksbZ fdjk;snkj yS.m&ykMZ dks vFkok mlds iq= o iq=h dks ;g 'krsZa Dictate ugha dj ldrk fd og M~kbZoj dk gh dke djs vkSj vU; dksbZ dke u djs vkSj bl fcUnq ij Hkh fopkj djus ds mijkUr v/khuLFk U;k;ky; }kjk tks fu.kZ; fn;k og lgh gS vkSj mlesa fdlh izdkj ds gLr{ksi dh vko';drk ugha gSA 32- tgkWa rd viw.kZuh; {kfr dk lEcU/k gS] bl fcUnq ij Hkh v/khuLfk U;k;ky; }kjk foLrkj ls fopkj fd;k x;k gS vkSj ;g fu/kkZfjr fd;k x;k gS fd ;fn okfn;ks dks dfFkr nqdku [kkyh djkdj ugha fn[yk;h tkrh gS rks mls viw.kZuh; {kfr gksxh tc izfroknh @ v/khuLfk dks lkr o"kZ ds vUrjky dk le; tks i;kZIr ls Hkh cgqr vf/kd gS fn;s tkus ds ckotwn ;fn og nqdku dh oSdfYid O;oLFkk ugha djrk gS rks ;g mldk nqjkxzg gS vkSj bu ifjfLFkfr;ksa esa v/khuLfk U;k;ky; }kjk tks ;g fu/kkZfjr fd;k x;k gS fd oknh dks vf/kd viw.kZuh; {kfr gksxh vkSj izfroknh dks dksbZ {kfr ugha gksxh] lgh gSA vr% bl fcUnq ij Hkh gLr{ksi djus dh vko';drk ugha gSA 33- mHk; i{kksa dh vksj ls izLrqr fof/k O;oLFkkvksa ij fopkj djus ds mijkUr rFkk orZeku izdj.k ds leLr rF;ksa] ifjfLFkfr;ksa o lk{; ij rFkk v/khuLfk U;k;ky; }kjk fn;s x;s fu.kZ; dh leh{kk djus ds mijkUr eSa bl jk; dk gwWa o bl fu"d"kZ ij igWqprk gwWa fd izLrqr dh x;h ;g vihy cyghu gS rFkk v/khuLFk U;k;ky; }kjk ikfjr fu.kZ; fnukafdr 06-9-2010 lgh Fkk ftlesa fdlh izdkj ds gLr{ksi dh vko';drk ugha gS cfYd mDr fu.kZ; iq"V fd;s tkus ;ksX; gS rFkk vihy O;; lfgr fujLr fd;s tkus ;ksX; gSA vkns'k vihykFkhZ }kjk izLrqr ;g jSUV dUV~ksy vihy O;; lfgr fujLr dh tkrh gSA v/khuLFk U;k;ky; }kjk ikfjr fu.kZ; fnukad 06-9-2010 dh iqf"V dh tkrh gSA vkns'k dh izfr ds lkFk v/khuLFk U;k;ky; dks i=koyh vfoyEc Hksth tk;sA fnukad 31-05-2011 g0 vLi"V ¼fouksn dqekj ;kno½ vij tuin U;k;k/kh'k] dksVZ ua0&14] eqjknkcknA** Contention of the counsel for petitioner is that section 21 of the Act clearly provides that where premises in question was purchased subsequently, the purchaser is under obligation to give six months' notice to the sitting tenant before moving application for release of the accommodation on the ground of his/her personal need but in the present case the landlady had not provided six months' notice as provided under section 21 of the Act. He also submits that it is an admitted fact that the shop in dispute was let out to the petitioner at a monthly rent of Rs. 600/- on 1.6.1993 without any order of allotment and as such the landlady cannot initiate any proceedings under the provisions of the Act, hence the release application filed by her under section 21(1)(a) of the Act is not maintainable the tenancy having been created in contravention of the provisions of the Act. It is lastly argued that petitioner being a licensee, the provisions of the Act would not apply and on this ground too the release application was not maintainable.
He further submitted that in any case application of the landlady was not for her genuine and bonafide need as she in the year 2007 has entered into an agreement with one Vipin Gupta to sell the accommodation in question and the courts below have not considered this aspect of the matter while holding need of the landlady as genuine and bonafide. This argument of the counsel is based upon an advertisement published in "Dainik Jagran" , by which she is alleged to have issued advertisement for sale of her house. This advertisement has not been disbelieved by the courts below. The court held that petitioner has filed only photo copy of the advertisement which is not admissible in evidence.
After hearing counsel for the petitioner and on perusal of record, I am of the opinion that whether petitioner is a licensee or a tenant, the provisions of the Act would apply. If the licensee takes a building or part of it under licence, and does not vacate it after the period specified in the Act, the proceedings can be taken under Act no. 13 of 1972 as provided under sub clause (5) of section 2-A in accordance with law. It may be noted that the petitioner tenant had himself approached the civil court in O.S. No. 857 of 1997 not to evict him except in accordance with law compelling the landlady to file release application under section 21(1) (a) as he had not vacated the tenement.
Argument of the counsel for petitioner with regard to period of notice is not tenable as it is settled law that notice can be given earlier but reasonable opportunity is to be given and he cannot be ordered to be evicted within six months of purchase by subsequent landlord. Six months' period provided is for giving reasonable opportunity to the tenant to make arrangement for alternative accommodation. In the instant case, the courts below have recorded a categorical finding of fact that even after receipt of the notice in 1997, the tenant did not vacate the tenement within reasonable period of time even though more than seven years period had elapsed in the litigation. The courts below have also rightly come to the conclusion that photo stat copy of the advertisement cannot be relied upon until and unless it is proved in accordance with law and then at the best it could be a piece of secondary evidence. The courts below have rightly disbelieved the case of the petitioner that he had made serious efforts to search out a alternative accommodation. The landlady has a right to establish her son in the independent business. The courts below have considered all aspects of the matter particularly provision of section 16 of the Act and the Rules which have been discussed in the impugned judgment, holding that need of the landlady for the shop in dispute to settle her son in business is genuine, bonafide and she would suffer comparatively more hardships than the tenant whose sons are already established in their business.
In vie