C.H.Barnad vs Additional District Judge IV,Bareilly & Ors.

S. Rafat Alam, J.—This is tenant''s petition for quashing of the judgment and order dated 14121987 of the Prescribed Authority, releasing the accommodation in question in favour of the landlord and also for quashing of the judgment and order dated 22101991 of the learned Additional District Judge, IV, Bareilly, affirming the aforesaid judgment of the Prescribed Authority and dismissing the appeal of the petitioner.

It appears that the landlord (respondent Nos. 3 to 7) moved an application under Section 21(1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (for short the Act), before the Prescribed Authority for the ejectment of the tenant from the accommodation in question and consequently, to release the same in their favour on the ground of personal need. The tenant appeared and filed written statement.

Both the parties given their evidence and after hearing them, the Prescribed Authority found that the need of the landlord is genuine and bona fide. While considering the comparative hardship of the tenant visavis landlord, the Prescribed Authority found that the hardship of the landlord is more pressing and greater than that of the tenant. Consequently, by the impugned judgment and order dated 14121987 allowed the landlord''s application and ordered to evict the tenant from the accommodation in question.

Aggrieved the tenant went in appeal before the learned District Judge, Bareilly which was decided by the learned Additional District Judge, IV, Bareilly who, by the impugned judgment dated 22101991 affirmed the findings of the Prescribed Authority and dismissed the appeal of the tenant.

Sri S. A. Shah, learned Counsel for the petitioner, argued that the landlord has got a big house bearing No. 480 of 20 rooms in his possession and therefore, the findings of the courts below that the need of the landlord is bona fide is not correct. It is further argued that the other two tenants of the premises in question have already vacated the accommodation, but this aspect has not been considered by the learned courts below.

In my view, the above submission of the learned Counsel for the petitioner, cannot be accepted for the reasons that the learned Prescribed Authority has found that the ancestor house bearing No. 480 located at Brahmpura Bhud, Bareilly, was of the father of the landlord and the same has been partitioned amongst the four brothers of the landlord in terms of the Will (Paper No. Aa/24) executed by their father and only three rooms have come in the share of the landlord which is inadequate to meet his requirement. It has further been found that the landlord Ramesh Chandra Saxena and his son Aditya Kumar Saxena, are practising lawyer and they need separate rooms for their office. It has also been found that the family of the landlord consists of seven adults members and, therefore, existing accommodation in their favour, which is consisting of three rooms only is insufficient, and therefore, he purchased the present house bearing No. 215 of Civil Lines, Bareilly to meet his requirement, which is also at a very close distance to the Courts and Railway Station. It has also been found that all the brothers are living separately. The appellate Court also affirmed the above finding of the Prescribed Authority and found that the need of the landlord is genuine and bonafide.

It is a settled legal position that the concurrent findings of fact based on evidence cannot be reappraised, by this Court in its writ jurisdiction.

Mr. Shah, learned Counsel for the petitioner, further argued that the notice as required under the First proviso of Section 21(1) of the Act is not proper. His contention is that the aforesaid notice is not a legal notice as contemplated under the First proviso of Section 21(1) of the Act.

First proviso of Section 21(1) of the Act reads as under:

"Provided thatwhere 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 purchase and the landlord has given 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."

The First proviso of Section 21(1) of the Act is in respect of a building which was purchased by the landlord after commencement of this Act and was already in the occupation of a tenant. It provides that the application for the eviction of such tenant under Section 21 (1) (a) of the Act shall only be entertained on the expiry of three years period from the date of such purchase provided a notice by the landlord in that behalf is given to the tenant six months before making an application under Section 21(1) (a) of the Act. However, such notice can be given even before the expiry of period of three years from the date of purchase of the building. Therefore, two conditions are to be satisfied before making an application under Section 21(1) (a) of the Act, viz., (i) a period of three years has elapsed from the date of purchase of the house by the landlord, (ii) Landlord has given a notice to the tenant in this respect as least six months before filing such application.

The landlord in his application under Section 21(1)(a) of the Act, has clearly asserted in para11 of the application that the notice was given to the tenant on 2111983 which was served on him on 18111983 and the tenant replied to the same on 21111983. This fact has not been denied by the tenant in his written statement and while giving reply to para 11 of the application, he also admitted that the landlord sent notice on 211 1983, but it has only been stated that such notice is not a legal notice. Therefore, admittedly the notice was given to the tenant in the month of November 1983 and the application under Section 21(1) (a) of the Act was filed in the month of May 1984, immediately after the expiry of six months. The house in question was purchased through a registered saledeed dated

25121981, as has been averred in para 8 of the application of the landlord, which has also been admitted by the tenant in para 8 of his written statement. The application under Section 21(1) (a) of the Act was filed in the month of May, 1984. Therefore, both the requirements, i.e., three years period from the date of purchase and six months notice to the tenant has fully been complied with.

Therefore, in my view, the requirement of proviso of Section 21(1) (a) of the Act has fully been complied with.

Having considered the submissions and having perused the impugned judgments, I am of the view that the impugned judgments do not suffers from any manifest apparent error and, therefore, this petition has no merit and deserves to be dismissed,

At this stage Sri Shah, learned Counsel for the petitioner, submitted that a reasonable time may be allowed to the tenantpetitioner to vacate the premises in question. Learned Counsel appearing for the respondents has no objection to the prayer, provided the petitioner gives an undertaking before the Prescribed Authority within a period of six weeks from today that he would vacate the premises in question within a period of four months from today.

Having considered the submissions made by the learned Counsel for the parties, I am of the view that it would be proper if the petitioner moves an application along with affidavit giving an undertaking before the Prescribed Authority within six weeks from today that he shall vacate the premises in question and shall give vacant and peaceful possession of the premises in question to the landlord within a period of four months from today, the Prescribed Authority may consider and allow the same, provided the petitioner deposits entire arrears of rent and continue to deposit future rent for the aforesaid period of four months as and when falls due. The petitioner shall also give an undertaking that he shall not induct any body or sublet the accommodation in question and shall give peaceful vacant possession to the landlord.

With the aforesaid observations, the petition is dismissed.