SUPREME COURT OF INDIA
Manoj Kumar
Vs.
Munni Devi
C.A.No.2919 of 2005
(R.C.Lahoti CJI. and G.P.Mathur JJ.)
28.04.2005
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 that the aforesaid provision has come up
for consideration before this Court in Martin & Harris Ltd. vs. Vth Addl.
District Judge 4 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. 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 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.