1. Heard Sri Salil Kumar Rai, learned counsel for petitioners and Sri H.P. Mishra, learned counsel for respondents.
2. Petitioners have assailed the judgment and order dated 4.10.2012 passed by Prescribed Authority in Rent Case No. 28 of 2009 and the appellate order dated 20.11.2012 passed by District Judge in Rent Appeal No. 17 of 2012 only on the ground that no notice under proviso to Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") was given, and, therefore, the entire proceedings are void and without jurisdiction.
3. The property in dispute belong to one Gomti Prasad., who had three sons, Kartikeshwar Pati Tripathi, Bhuvneshwar Tripathi and Gopeshwar Tripathi. The eldest son Kartikeshwar Pati Tripathi had two sons, Raghav and Ghayshyam; Bhuvneshwar Tripathi had three sons, Virendra, Rishikesh and Narendra; and Gopeshwar Tripathi had two sons Hari Prasad and Om Prakash.
4. Deriving interest in the property from Gomti Prasad, Kartikeshwar Pati Tripathi succeeded 1/3 share in the property in dispute and thereafter Raghav and Ghanshyam derived their rights through lien.
5. Petitioners' ancestors had taken property on rent as long back as in 1940 at a monthly rent of Rs. 20/- which was revised from time to time and reached to Rs. 450/- per month. Petitioners paid 1/3 rent, i.e., Rs. 150/- per month to three brothers Kartikeshwar Pati Tripathi, Bhuvneshwar Tripathi and Gopeshwar Tripathi against receipts issued by them. Copies of some of such receipts have been placed on record as Annexure-3 to the writ petition.
6. Sri Raghav and Ghanshyam sold their shares in property in dispute to Dhiraj Kumar Verma vide sale-deed dated 24.4.2008. In the sale-deed Raghav and Ghanshyam, however, mentioned sale of entire property instead of confining it to their share. They claimed that property of Gomti Tripathi was partitioned between his three sons. The disputed property came to the share of their father Kartikeshwar Pati Tripath. His name was entered in municipal record in 1961-62 and is continuing till date in the assessment orders and municipal documents. Therefore, they possess complete title over the property in dispute and sold it accordingly to Sri Dhiraj Verma.
7. Respondent no. 1, i.e., purchaser of disputed property, served a notice dated 4.8.2008 upon petitioners stating that the house has been purchased by him and disputed accommodation is required for his personal need, therefore the same be vacated by petitioners, within one month, from the date of receipt of notice, failing which, eviction proceedings in the Court of law shall be initiated.
8. Thereafter P.A. Case No. 28 of 2009 was filed vide application dated 8.9.2009.
9. In the written statement filed by petitioners, they have specifically taken a ground that application was not entertainable in view of proviso to Section 21 (1)(a) of Act, 1972.
10. The Court below held that requirement of notice under Section 21 (1) (a) of Act, 1972 shall not affect the proceedings if Release Application is decided after three years from the date of purchase and, therefore, proceedings are not vitiated.
11. Sri Salil Kumar Rai, learned counsel for petitioners, submitted that this approach is clearly illegal, erroneous and contrary to mandatory provision, i.e., proviso to Section 21 (1) (a) of Act, 1972.
12. It is not disputed by learned counsel for respondents, Sri H.P. Mishra, that Release Application was filed by setting need only under Section 21 (1) (a) of Act, 1972. In these circumstances, it would be appropriate to consider whether Release Application filed on a ground under Section 21 (1) (a) of Act, 1972 was maintainable in 2009, only on the ground that on the date of decision, a period of three years has elapsed from the date of purchase of disputed accommodation.
13. The relevant provision reads as under:
"21. Proceedings for release of building under occupation of tenant.-(1) The Prescribed Authority may on an application of 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 exists, 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 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 purchae 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 further that if any application under Clause (a) is made in respect of any building let out exclusively for non-residential purpose the prescribed authority while making the order of eviction shall after considering all relevant facts of the case, award against the landlord to the tenant an amount not exceeding two years' rent as compensation and may, subject to rules, impose such other conditions as he thinks fit : ..."
14. It says that:
(i) The landlord must be a person who has purchased disputed property after enforcement of Act, 1972.
(ii) The tenant must be a person who occupy the property as tenant before its purchase by landlord.
15. These two conditions are admittedly satisfied inasmuch petitioners are tenants occupying disputed premises, admittedly, since before the date of purchase of disputed house by respondent no. 1, vide sale-deed dated 24.4.2008.
16. Now further, the proviso says that no application shall be entertained on the ground 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. Prohibition contained in the Statute is against entertaining an application by the Prescribed Authority within a period of three years from the date of such purchase. The second requirement is that landlord must have given a notice to tenant six months before institution of such application. The Statute further says that notice, however, may be given before expiration of period of three years, but for the purpose of entertaining application on the ground mentioned in Clause (a), there is no relaxation. It clearly says that an application shall not be entertained by Prescribed Authority on the ground mentioned in Clause (a) of Section 21 (1) unless a period of three years has elapsed. In other words, a plain reading of proviso to Section 21 (1) (a) of Act, 1972 makes it clear that Release Application shall not be entertained by Prescribed Authority within a period of three years from the date of purchase of such disputed premises on the ground under Clause (a) of Section 21 (1) of Act, 1972.
17. So far as period of notice is concerned, the later part of proviso gives liberty to landlord to serve notice upon tenant even before expiry of a period of three years, but with respect to entertainment of application by Prescribed Authority, three years embargo is clearly there.
18. It can be understood in a different manner. If an application is filed immediately after expiry of three years by showing that notice was served upon tenant giving six months time after two years or within period of three years, at any point of time, and six months period thereafter has expired, such an application is entertainable, but if the three years period has not expired, the embargo under proviso would come to apply.
19. This proviso has been considered by this Court in Civil Misc. Writ Petition (Writ-A) No. 34795 of 2009 (Ramzani Vs. Duregesh Varman and another) decided on 28.9.2012 and in para 10 of the judgment, this Court has said as under:
"10. There are two requirements under proviso wherever it is applicable, without complying whereof there is a complete restrain from entertaining an application on the ground mentioned in Clause (a) of Section 21(1) of Act, 1972. One is that such an application shall not be entertained unless a period of three years has elapsed from the date of purchase of accommodation by subsequent purchaser/landlord. Consequent to that, a notice of not less than six months' period has to be given to the tenant. In respect to the notice, proviso gives concession that such a notice may be given before expiration of the period of three years, but no application on the ground under Section 21(1)(a) is entertainable unless both these conditions are satisfied. This is what I find very clear and unambiguous from a bare reading of first proviso to Section 21(1)(a) of act, 1972."
20. The benefit of six months' notice can be waived by tenant but so far as the filing of application before three years is concerned, that is a restriction upon the Court that no application shall be entertained, and, therefore, an application cannot be entertained by the Court before expiry of three years from the date of purchase for release of an accommodation on the ground under Section 21 (1) (a) of Act, 1972. Such entertainment of application within three years is prohibited.
21. The Courts below have clearly erred in law by reading it that the same would be in reference to the date of decision of application and not the date of institution of application. This three years' period has to be seen with reference to the date when application was entertained by the Court and not when it was finally decided. In the present case, even otherwise, this plea has been taken by petitioner-tenant at the first opportunity. It cannot be said that he has waived or surrendered the aforesaid plea. The property came to be purchased by landlord on 24.4.2008 and the release application was filed on 8.9.2009, i.e., within one and half year. It was clearly barred and Prescribed Authority could not have entertained release application by virtue of proviso to Section 21 (1) (a) of Act, 1972. Therefore, all subsequent proceedings are clearly illegal.
22. In the result, the writ petition is allowed. Impugned orders dated 4.10.2012 and 20.11.2012 are hereby set aside.
23. No costs.
Dt. 01.08.2014 PS