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CASE NO.: Appeal (civil)  2919 of 2005

PETITIONER: Manoj Kumar & Anr.

RESPONDENT: Munni Devi

DATE OF JUDGMENT: 28/04/2005

BENCH: CJI R. C. Lahoti, G. P. Mathur & P.P. Naolekar

JUDGMENT: J U D G M E N T

(Arising out of Special Leave Petition (C) No.17996/2002)

G. P. MATHUR, J.

1.      Leave granted.

2.      This appeal by special leave has been preferred against the  judgment and order dated 26.7.2002 of Allahabad High Court by  which the writ petition preferred by the appellants was dismissed.

3.      Jawahar Lal, the father of the appellants was a tenant of a  shop bearing No. 29/17, Namak Ki Mandi, Agra and it was  purchased by the respondent Smt. Munni Devi on 23.01.1976.    After the death of Jawahar Lal, the appellants being  his sons  inherited the tenancy and started paying rent to the respondent.   The respondent filed an application in the year 1987 seeking  release of the shop on two grounds, namely, that the building was  in a dilapidated condition and is required for the purpose of  demolition and new construction wherein her husband will carry  on the business after new construction had been made.  The second  ground pleaded was that one of her sons was unemployed and was  sitting idle and he would also establish his business in the shop.   The appellants contested the release application on various  grounds.  The Prescribed Authority dismissed the release  application by the judgment and order dated 15.04.1989.  The  respondent then preferred an appeal which was allowed by the  VIIth Addl. & District Judge, Agra, by the judgment and order  dated 13.9.1996 and the shop was released in favour of the  respondent and she was directed to pay rent of one year as  compensation to the appellants.  The appellants challenged the  aforesaid judgment by filing a writ petition in the Allahabad High  Court which was dismissed on 26.07.2002.

4.      Shri Siddartha Bhatnagar, learned counsel for the appellants,  has submitted that the landlord had applied for release of the shop  under the tenancy of the appellants under Section 21(1)(a) of UP  Urban Builldings (Regulation of Letting, Rent and Eviction) Act,  1972 (hereinafter referred to as the Act) and the first proviso to  said sub-section requires giving of notice by the landlord to the  tenant not less than six months before filing of such application  and as in the present case no such notice had been given, the  release application was not maintainable and was liable to be  dismissed on this ground alone.  Learned Counsel has submitted

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that the aforesaid provision  has come up for consideration before  this Court in Martin & Harris Ltd. vs. Vth Addl. District Judge  1998 (1) SCC 732 wherein it was held that the requirement of  giving prior notice was mandatory.  Challenge has also been raised  to the findings recorded by the Appellate  Authority in favour of  the landlord and it has been urged that she had no bona fide  requirement of the property and further the appellants would suffer  greater hardship in the event of release of the shop in which they  were carrying on business for a long time.

5.      Learned counsel for the respondent has submitted that six  months’ notice had in fact been given in the present case before  filing the release application.   He has also submitted that the  provision of giving six months’ notice before filing the release  application is not mandatory and, therefore, the release application  cannot be held to be not maintainable even if no such notice is  given by the landlord.  In support of this submission, learned  counsel has placed reliance on a later decision of this Court in  Anwar Hasan Khan vs. Mohd. Shafi and Ors. 2001 (8) SCC 540  wherein it was held that the period contemplated for not initiating  the eviction proceedings against a tenant on the grounds specified  in Clause (a) of sub-section (1) of Section 21 was three years and  in no case more than three years and six months and any  proceeding initiated for release of the building on the aforesaid  ground after the expiry of the period does not require the service of  six months prior notice.  Learned counsel has further submitted  that after a thorough examination of the evidence on record the  Appellate Authority had recorded  clear findings that the need of  the landlord was bona fide and genuine and further that in the  event the shop was not released the landlord would suffer greater  hardship.  It has thus been submitted that the Judgment of the  Appellate Authority is perfectly sound and the writ petition filed  by the appellants was rightly dismissed by the High Court and as  such there is absolutely no occasion for this court to interfere in a  Special Leave Petition filed under Article 136 of the Constitution.

6.      The judgment of the Appellate Authority shows that the  respondent (landlord) moved an application for adducing  additional evidence in appeal, which was allowed on 9.4.1993.    The respondent filed the copy of the notice dated 17.2.1983 sent by  Shri Jethanand, Advocate on her behalf and also the copy of the  reply dated 8.3.1983 sent by Shri Ram Chander Bhakru, Advocate.  The aforesaid documents were proved by Shri Rakesh Kumar  Bansal, clerk of Shri Jethananad, Advocate.  The respondent also  filed affidavit of Shri Brij Mohan.  Thereafter, the tenant  summoned Bangali Mal (husband of respondent, Smt. Munni  Devi), Brij Mohan and Rakesh Kumar Bansal and they were cross- examined.  The Appellate Authority, after considering the  aforesaid evidence, has recorded a clear finding that a notice was  sent by the landlord before filing the release application and the  requirement of first proviso to Section 21(1)(a) of the Act had been  complied with.  The filing of the additional evidence before the  Appellate Authority finds mention in the Writ Petition which was  filed by the appellants in the High Court.  

7.      In view of the findings recorded by the Appellate Authority  and also by the High Court that a notice, as contemplated by the  first proviso to Section 21(1)(a) of the Act, had been sent by the  landlord we do not consider it necessary to decide the legal issue  raised by the learned counsel for the appellants and the same may  be done in a more appropriate case. 8.      The Appellate Authority has recorded a clear finding that the  need of the landlord was bona fide and genuine and further that the  landlord will suffer greater hardship  in the event of rejection of the  release application than that which will be suffered by the tenants

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in the event of grant of the application as they had several other  vacant shops in their occupation.  The Appellate Authority has also  recorded a finding that the requirement of first proviso to sub- Section (1) of Section 21 of the Act had been complied with as a  notice was given before filing of the release application.  The High  Court, therefore, rightly declined  to interfere with the order passed  by the Appellate Authority while exercising jurisdiction under  Article 226 of the Constitution.  

9.      There is no merit in the present appeal which is hereby  dismissed with costs.

10.     The appellants are granted time till 31.07.2005 to vacate the  building subject to their filing the usual undertaking within one  month.