Mohd. Umar Siddiqui & Another vs Dr. V.K. Pandey

Sudhanshu Dhulia, J. (Oral)

This is landlords’ writ petition. Admittedly, the petitioners had purchased the property in the year 1991 from the erstwhile owner when the present

respondent was a sitting tenant in that property. Thereafter in the year 2007, the landlords moved an application under Section 21(1) of the Uttar

Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (from hereinafter referred to as the ‘Rent Control Act’) which

was allowed by the Prescribed Authority vide judgment dated 06.1.2011. Tenant/respondent preferred appeal against the order of the Prescribed

Authority and the Appellate Court by its judgment dated 03.4.2013 held that in terms of the proviso to Section 21(1) of the Rent Control Act, six

months’ notice before initiation of the proceedings under Section 21(1) is mandatory and the Trial Court has not given any finding on this aspect

and, therefore, the Appellate Court allowed the appeal of the tenant and set aside the judgment of the Prescribed Authority and remanded the mater

back to the Trial Court for decision afresh. Aggrieved, the petitioners have filed this writ petition.

Section 21(1) of the Rent Control Act reads as under:

“21. Proceedings for release of building under occupation of tenant.â€"(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 of 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 a 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 purchase 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 purposes, 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 it thinks fit;

Provided also that no application under clause (a), shall be entertained--

(i) for the purposes of a charitable trust, the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, caste,

or place of birth;

(ii) in the case of any residential building, for occupation for business purposes;

(iii) in the case of any residential building, against any tenant who is a member of the armed forces of the Union and in whose favour the prescribed

authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925) has issued a certificate that he is serving under special conditions

within the meaning of Section 3 of that Act, or where he has died by enemy action while so serving, then against his heirs:

Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant

from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard

to such factors as may be prescribed.â€​

Admittedly, the notice was not given by the landlords to the tenant in terms of the proviso to Section 21(1) of the Rent Control Act even though the

landlords/petitioners had purchased the property from its erstwhile owner in the year 1991 when the respondent/tenant was in occupation of the said

property. In the case of Martin & Harris Ltd. V. VIth Additional Distt. Judge & Others, (1998) 1 SCC 732, the Hon’ble Apex Court held that

notice in terms of the proviso to Section 21(1) of the Rent Control Act is mandatory. Learned Counsel for the petitioners though would argue that in

this case, the mandatory requirement of notice stood waived as the tenant did not avail this protection because he failed to plead the same before the

Trial Court, and for this he too relies upon the above judgment of Hon’ble Apex Court.

In any case, it is for the tenant to waive the requirement and since the Appellate Court has held that the Trial Court has not given any finding on this

aspect, no interference is being called for in the present writ petition. The petition is hereby dismissed. Let this matter be dealt with by the Prescribed

Authority. The petition therefore is dismissed. All the same, since the matter is extremely old, Prescribed Authority is directed to expedite the hearing

and conclude it within a period as is visualized under Rule 15(3) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction)

Rules, 1972.

Let the parties appear before the Trial Court on 09.7.2018.

Registry is directed to supply a certified copy of this order to learned Counsel for the parties within 24 hours on payment of prescribed charges.