Pushp Raj and others vs District Judge, Meerut, and others

Mrs. Poonam Srivastav, J.

Supplementary affidavit filed today is taken on record.

Heard Sri S.D. Kautilya, counsel for tenant/petitioner.

The dispute relates to shop no. 155, situated in Mohalla Kanoongoyan, Meerut. Release application was preferred by landlady under Section 21 (1) (a) of U.P. Act No.XIII of 1972 (hereinafter referred to as the Act). Release application was allowed by Prescribed Authority vide judgment and order dated 30.11.2006. Against the order of Prescribed Authority, appeal no. 164 of 2006 under Section 22 of the Act was filed. The Special Judge (SC/ST Act) Meerut, confirmed order of Prescribed Authority vide judgment and order dated 25.8.2009. Both the judgment and orders are impugned in the instant writ petition.

First submission on behalf of petitioners is that father of tenant Pushp Raj, late Matarumal, was original tenant. After his death, petitioners inherited tenancy rights. The shop in question was purchased by present landlady on 4.5.2001. A notice was given in the year 2002 to late Matarumal, father of petitioner no.1 but before filing of release application, no six months notice as required in law was given to tenants, therefore, release application was not maintainable.

Second submission is that findings on the question of ''bonafide need'' and ''comparative hardship'' are also perverse and erroneous, which are liable to be quashed.

I have perused the two judgments and gone through the entire record and also considered arguments of counsel for petitioners. So far first submission regarding six months notice is concerned, it is without any substance for the reason that Proviso to 21 (1) of the Act lays embargo on the subsequent landlady from institution of a release application on the ground of personal need under Section 21 (1) (a) of the Act not before three years has elapsed since date of such purchase and landlady has given a notice in that behalf to the tenant not less than six months.

In the instant case, building was purchased in the year 2001. Admittedly, notice was given to the erstwhile tenant Matarumal and release application was instituted only in the year 2005 i.e. after lapse of more than three years. Requirement of six months notice is only with a view to apprise the tenant of new landlady. Petitioners have unequivocally admitted that after shop was purchased by landlady/respondents, they are paying rent to her and also that notice was served to their father, therefore, I am of the view that no second notice was required. Besides, release application was filed after lapse of more than three years, therefore, this objection is not available to tenants.

So far next submission in respect of findings of the two courts below regarding ''bonafide need'' and ''comparative hardship'' are also not worth consideration as the two courts recorded concurrent findings of fact after taking into consideration evidence and come to a conclusion that need of landlady is bonafide as well as hardship suffered by landlady is greater than that of tenants. It is also noteworthy as well as admitted by Sri S.D. Kautilya, that tenants have not made any effort to look for any accommodation during pendency of proceedings in the courts below. Tenants clearly admitted that they will not be able to get any shop at monthly rent of Rs.50/ which they are paying at present.

Thus, in view of principle laid down by the Apex Court in the case of Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundala AIR 2003 SC page 2713, Azmuddin Vs. Malika Bano (Smt.) 2008 (3) ARC page 570, failing to search alternative accommodation after filing of release application is sufficient to decide question of hardship against tenants. It was also held that in the case of S.N. Kapoor (Dead) By LRs. Vs. Basant Lal Khatri and others (2002) 1 SCC page 329 that some discretion has to be allowed to landlady and courts should not impose their own wisdom how landlady would arrange her affairs and ought not to be carried away by sympathy to tenants. Thus, I do not find that the two judgments suffer from any error of law. The writ petition lacks merit and is, accordingly, dismissed.