# Mohd. Ahmad & Ors v. Noor Mohammad

- **Citation:** (2022) 12 ILRA 903
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-24
- **Case number:** Writ-A No. 21951 of 2018
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ahmad-ors-v-noor-mohammad-48065
- **Pages:** 7

## Headnote

Sri Atul Dayal, Sr. Advocate, Sri Ayush Khanna,
Sri Mushir Khan

The
Uttar
Pradesh
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972-section 21(1)-Tenant Petitioneragainst order of release -Landlord purchased the
premises-tenants were in occupation since time
of former owner and landlord- landlord moved
release
application
after
29
years-non
compliance of section 21 of the Act-impugned
order did not refer to non compliance-total
absence of finding vitiate the judgment.Appeal
to be re-heard.

Petition allowed partly. (E-9)

List of Cases cited:

## Text

12 All. Mohd. Ahmad & Ors. Vs. Noor Mohammad
903
accommodation to accommodate tenant at a
prime part of the building or at a prime
location.

14. In such above view of the matter,
I am not able to sustain the order of the
appellate court and, accordingly, writ
petition succeeds and is allowed.

15. The order passed by the appellate
court is set aside and the order passed by
the prescribed authority is confirmed.
----------
(2022) 12 ILRA 903
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 21951 of 2018

Mohd. Ahmad & Ors ...Petitioners
Versus
Noor Mohammad ...Respondent

Counsel for the Petitioners:
Sri Manish Tandon, Sri Shailendra Singh

Counsel for the Respondents:
Sri Atul Dayal, Sr. Advocate, Sri Ayush Khanna,
Sri Mushir Khan

The
Uttar
Pradesh
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972-section 21(1)-Tenant Petitioneragainst order of release -Landlord purchased the
premises-tenants were in occupation since time
of former owner and landlord- landlord moved
release
application
after
29
years-non
compliance of section 21 of the Act-impugned
order did not refer to non compliance-total
absence of finding vitiate the judgment.Appeal
to be re-heard.

Petition allowed partly. (E-9)

List of Cases cited:
1. Anwar Hasan Khan Vs Mohd. Shafi & ors.,
(2001) 8 SCC 540

2. Nirbhai Kumar Vs. Maya Devi & ors., (2009) 5
SCC 399

3. Martin & ors. Harris Ltd. Vs VIth Additional
Distt. Judge & ors., (1998) 1 SCC 732
(Delivered by Hon'ble J.J. Munir, J.)

1. This tenants' writ petition is
directed against an order of release passed
by the Prescribed Authority, under Section
21(1)(a) of The Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (U.P. Act No. 13 of
1972) (for short, ''the Act'), that has been
affirmed in appeal.

2. An application for release was
moved by Noor Mohammad, the sole
respondent to this writ petition, under
Section 21(1)(a) of the Act, seeking release
of House No. 10/254-J, Heeraman Kaa
Purwa, Kanpur Nagar, admeasuring 80
square
yards,
details
of
which
are
mentioned in Schedule A at the foot of the
release application. It was registered on the
file of the Prescribed Authority/ Additional
Civil Judge (Sr. Div.), Court No.5, Kanpur
Nagar as Rent Case No. 14 of 2013.

3. Noor Mohammad claimed that he
is the owner of the aforesaid premises. The
premises were said to be 100 years old with
an arched roof and in a dilapidated
condition. The back portion on the eastern
side had already fallen down. The house is
constructed on a plot of land in two equal
parts. The northern half has two rooms, a
kitchen
and
a
courtyard,
which
is
residential and in Noor Mohammad's
occupation. The remainder half part of the
premises on the southern side has three
arched roof rooms, oriented from west to
904 INDIAN LAW REPORTS ALLAHABAD SERIES
east, where-after there is a courtyard,
another room and a gallery. However, the
eastern room of this part was dilapidated
and collapsed quite a long time ago. In its
place, Mohd. Ahmad (since deceased),
whose heirs and LRs are the petitioners
here, constructed a tin-shed worked room
and also enclosed a part of the courtyard
with a tin-shed, giving it the shape of a
room, converting it illegally.

4. It is this part of Noor Mohammad's
house, which is disputed and shown in the
map accompanying the application by
letters A B C D and fully described at the
foot of the application in Schedule B.
Mohd. Ahmad is a tenant in the part of the
house shown in Schedule B at the foot of
the release application at the rate of
Rs.100/- per month, apart from water and
sewerage tax. Pending the application for
release before the Prescribed Authority,
Mohd. Ahmad passed away on 15.08.2014
and his heirs and LRs, who are the writ
petitioners here, to wit, Mohd. Akram,
Mohd. Arshad and Mohd. Niyaz, all sons of
the late Mohd. Ahmad were substituted as
opposite parties nos. 1/1, 1/2 and 1/3. The
three heirs and LRs of Mohd. Ahmad shall
hereinafter be referred to as 'the tenants',
unless the context requires individual
reference.
Noor
Mohammad
shall
hereinafter be called 'the landlord'.

5. It is the landlord's case further in
the release application that he has a family
comprising 23 members, all of whom
reside with him in the half portion of the
house shown in Schedule A, that is in his
occupation, suffering great inconvenience.
The landlord says that on account of
shortage of space, his family members have
to live in subhuman conditions. One of his
sons, Akil Ahmad could not be married
because of shortage of space and a younger
son, who has married himself, is staying in
a rented accommodation in House No.
90/254-J at the rate of Rs.1500/- per month.

6.

The
tenants
contested
the
application by filing a written statement
saying that the demised premises no doubt
have an arched roof, but the premises are
not dilapidated. The demised premises
comprise two rooms, a courtyard and a tinshed. The demised premises, in the
condition it exists, has been that way for
the past 50 years. It is then said that Ali
Ahmad does not stay with his father. He
stays along with his wife and children at
Chunniganj. Likewise, Mohd. Arif and
Mohd. Akil stay elsewhere and have their
families. It is the tenants' case that Shakil
Ahmad and Wali Ahmad do not get along
with the landlord and for the said reason,
stay away. The landlord does not need any
residential accommodation.

7. The plot of land he has got vacated
from an old tenant, Mohd. Sharif, has three
rooms, making it a total of six rooms in the
landlord's possession. Mohd. Ahmad, who
was alive at the time, further pleaded that
he is 80 years old and his family comprises
besides himself, his son Mohd. Akram, his
wife and two children, two other sons
Mohd. Arshad and Mohd. Niyaz, both of
whom are unmarried. The landlord has
purchased the demised premises, including
the part in his occupation on 20.07.1984,
but in compliance with the first proviso to
Section 21 of the Act, has not served a
notice giving the tenants six months' time
to vacate. As such, the release application is
not maintainable.

8. It is also the tenants' case that Rent
Case No. 5 of 2010, Noor Mohd. vs. Mohd.
Shahid and others was brought against the
tenant there, pleading the same grounds as
12 All. Mohd. Ahmad & Ors. Vs. Noor Mohammad
905
those here to establish the landlord's bona
fide need and release of that premises was
granted in the landlord's favour. Some of
the named sons of the landlord were
pleaded to be living away from him and it
was urged that their need cannot be looked
into.

9. Both sides led evidence in support
of their case and the Prescribed Authority
after considering the case on the issues,
amongst others, of bona fide need and
comparative hardship, allowed the release
application vide judgment and order dated
25.11.2015. The tenants were ordered to
vacate the demised premises and handover
vacant possession to the landlord within
two months.

10. The tenants appealed the said
judgment to the District Judge, Kanpur
Nagar, sitting as the Appellate Authority
under the Act. The tenants' appeal under
Section 22 of the Act was registered on the
file of the Appellate Authority as Rent
Appeal No. 86 of 2015. The appeal was
assigned to the Additional District Judge,
Court No.14, Kanpur Nagar and came up
for
determination
before
him
on
31.05.2018. The order of the Appellate
Authority records that it was heard in the
absence of the tenants (that is to say the
writ petitioners).

11. At the hearing of the appeal, the
Appellate Authority has recorded that the
tenants did not appear in support of the
appeal and to all appearances by one part of
the record of the proceedings mentioned in
the judgment, judgment was reserved,
without hearing the tenants. However, the
judgment of the Appellate Authority in the
next following paragraph would show that
learned Counsel for both parties were heard
and records perused, including written
argument. The judgment passed by the
Appellate
Authority
shows
a
rather
unfaithful record of proceedings in the
appeal. More would be said about it later in
this judgment.

12. The Appellate Authority by his
judgment and order dated 31.05.2018
dismissed the appeal and affirmed the order
of release.

13. Aggrieved, this writ petition has
been filed.

14. Heard Mr. Manish Tandon,
learned Counsel for the tenants and Mr.
Atul Dayal, learned Senior Advocate
assisted by Mr. Ayush Khanna, learned
Counsel appearing for the landlord.

15. Looking to the course of
proceedings
and
the
issue
of
maintainability of the application for want
of notice under the first proviso to Section
21 of the Act, this Court does not propose
to examine the findings, at least of the
Appellate Authority, on the issues of bona
finde need and comparative hardship. It is
of utmost importance to these proceedings
that there is no quarrel about the fact that
the
landlord
purchased
the
demised
premises through the registered sale deed
dated 20.07.1984. The tenants were in
occupation since the time of the former
owner and landlord. The landlord moved
the application for release on 27.02.2013,
that is to say, after a period of about 29
years. The tenants, in answer to the
application, raised a specific plea about
non-compliance
of
the
mandatory
provisions carried in the first proviso to
Section 21 of the Act. The plea was raised
in Paragraph No. 11 of the written
statement. It was raised in the following
words:
906 INDIAN LAW REPORTS ALLAHABAD SERIES

"यह नक प्राथी गृहस्वामी िे नववानदत
मकाि 20/07/1984 को खरीदा है परन्तु उसिे
धारा 21 के वैधानिक प्रावधािों का पालि िही
नकया है। अतः िोनटस ि देिे के कारण निमुमन्धक्त
प्राथमिापत्र पोिणीय िही है और निरस्त होिे
योग्य है।"

16. In the replication, that was filed,
the aforesaid plea was responded to in
Paragraph No. 5, pleading a case that no
notice is required to be given after passage
of 30 years from the date of purchase of the
demised premises by the landlord. The
relevant part of the replication carried in
Paragraph No. 5 at Page 43 of the paperbook read:

"यहां यह नलखिा सुसंगत है नक चूंनक
वतमाि वाद खरीद की नतनथ नदिांक 20.07.84
के तीस विम के बाद प्रस्तुत नकया गया है इसनलये
पूवम िोनटस देिे की कोई आवश्यकता िहीं थी।"

17. The Prescribed Authority dealt
with the aforesaid plea answering it against
the tenants by holding that in view of the
decision of the Supreme Court in Anwar
Hasan Khan v. Mohd. Shafi and others,
(2001) 8 SCC 540, there was no necessity
of serving the notice of six months
envisaged under the first proviso to Section
21 to maintain an application under Section
21(1)(a) of the Act. The findings of the
Prescribed Authority in this regard is
extracted below:

"इस सम्बन्ध में नवपक्षी द्वारा स्वीकृत तथ्य
है नक उक्त मकाि सि १९८४ में याची / लैण्ड
लाडम द्वारा खरीदा गया था जैसा नक उसिे
अपिी आपनि / जवाबदावा प्रपत्र संख्या ११ के
अनतररक्त कथि के पैरा १३ में स्वीकार नकया
है। अतः इस नबन्दु पर न्यायालय का यह
अनभमत है नक याची िे प्रश्नगत सम्पनि को
जररए िय जब सि १९८४ में प्राप्त नकया
तत्पिात वतमाि अवमुक्त प्राथमिा-पत्र सि
२०१३ में प्रस्तुत नकया ऐसी न्धस्थत में िोनटस नदए
जािे की कोई बाध्यता िहीं है। कवकि व्यवस्था-
िफील अिमद - बनाम - सिकवन्द्र िौर
२००६ ( १ ) ए. आर. सी. पेज ४५९ में
माििीय उच्च न्यायालय द्वारा निणीत नकया
गया हैं नक यनद अवमुक्त प्राथमिा-पत्र मकाि
िय करिे के पांच विम से अनधक समय के
पशचात प्रस्तुत नकया गया, इस प्रकार िोनटस
की आवश्यकता िहीं है। इसी प्रकार एक अन्य
नवनध व्यवस्था - अिवार हसि खाि - बिाम
मोहम्मद शफी तथा अन्य २००१ (२) इलाहाबाद
रेन्ट केसेज़ पेज ५५४ में भी यह अनभनिधामररत
नकया गया है नक िय के 3 विम के पशचात
िोनटस की आवश्यकता िहीं होती है।"

18. The appeal that the tenants
preferred raises specific grounds in the
memorandum, numbered Ground Nos. 1,
2 and 3, that read to the following effect:

"1. Because the Learned Lower
Court has not considered that the notice
for six months in view of the provision of
section 21(1) of proviso i is mandatory
which was not complied by the opposite
party / land lord and this law has been
wrongly considered by Learned Lower
Court in view of the law held in ARC
2006 (1) page 459 & ARC 2001 (2) page
554 and passed impugned order.

2. Because the Learned Lower Court
has not considered. the latest law of
Hon'ble Supreme Court which was held
in ARC 2011 (1) page 513.

3. Because the Learned Lower Court
has also not considered properly that the
notice was not waived by the appellant
and the mandatory provision has been
wrongly ignored in the impugned order
and passed impugned order."
12 All. Mohd. Ahmad & Ors. Vs. Noor Mohammad
907

19. It is argued by the learned
Counsel for the tenants that the Appellate
Authority has incorrectly recorded the fact
that they did not appear at the hearing to
press their appeal or that the appeal was
heard in their absence with the Appellate
Authority hearing the respondent alone and
perusing records. Normally, this kind of a
submission would not at all be entertained
by this Court. This submission in normal
course is one which had to be agitated by
way of a review before the Appellate
Authority; in fact, before the same Judge,
who passed the impugned judgment in
appeal. Here, however, there are very
startling features that impel this Court to
doubt the correctness of the record of
proceedings by the Appellate Authority.
The Appellate Authority while writing the
impugned
judgment
has
recorded
in
Paragraph Nos. 8 and 9 as follows:

"8. अपीलाथी के नवद्वाि अनधवक्ता को
बार-बार अवसर देिे के उपरान्त भी अपीलाथी
द्वारा बहस िहीं की गयी व उसे नलन्धखत बहस
दान्धखल करिे की स्वतंत्रता देते हुए पत्रावली
निणमय हेतु सुरनक्षत की गयी।

9. मैिे उभयपक्षों के नवद्वाि अनधवक्तागण
के कथि को सुिा एवं सम्पूणम पत्रावली का
सम्यक पररशीलि नकया तथा नलन्धखत बहस का
अवलोकि नकया।"

20. It is indeed beyond understanding
how the Appellate Authority could say in
Paragraph No. 8 with so much of emphasis
that the learned Counsel for the tenants
(appellants before him), despite being
given repeat opportunity, did not appear
and argue the appeal and, therefore, giving
him liberty to file written submissions,
judgment was reserved; and, then say in the
following paragraph that the learned Judge
has heard learned Counsel for both parties,
perused the entire records etc. The manner,
in which the appeal was heard by the
Appellate Authority, casts a grave doubt
about the the hearing before him. The
record betrays a hurried disposition, where
a fair hearing for the tenants appears to
have been a causality.

21. This conclusion of ours is
buttressed by the fact that the most import
point that the tenants had canvassed in
support of their case, that is to say, noncompliance with the first proviso to Section
21 of the Act, does not find the slightest
mention by the Appellate Authority in the
judgment impugned. The memorandum of
appeal raises the issue through three well
drafted
grounds
and
the
Prescribed
Authority has dealt with the issue. If the
appeal had indeed been heard with the
learned Counsel addressing the Appellate
Authority, there is no reason why the most
crucial point that the tenant had raised
about the mandatory compliance of six
months' notice envisaged under the first
proviso to Section 21 of the Act, would not
have been dealt with. The total absence of a
finding regarding this issue, in the opinion
of this Court, would vitiate the judgment of
the Appellate Authority. It would require
the appeal to be re-heard, granting
opportunity to the tenants.

22. The course of hearing of the
appeal seems to have been for some
reason hurried and slipshod before the
Appellate Authority. This Court is of
opinion that the Prescribed Authority
dealt with issue of the mandatory notice
envisaged under the first proviso to
Section 21 of the Act, guided by the law
laid down by the Supreme Court in
Anwar Hasan Khan (supra), which was
later on reconsidered by a three Judge
Bench in Nirbhai Kumar v. Maya Devi
and others, (2009) 5 SCC 399, where the
908 INDIAN LAW REPORTS ALLAHABAD SERIES
earlier decision of the Supreme Court in
Martin
&
Harris
Ltd.
v.
VIth
Additional Distt. Judge and others,
(1998) 1 SCC 732 was approved as the
correct view. In Nirbhai Kumar, it was
remarked that Martin & Harris Ltd. was
not brought to the notice of the Bench
hearing Anwar Hasan Khan. In Nirbhai
Kumar, the relevant part of the holding
bearing on the issue of mandatory
character of the notice under the first
proviso to Section 21 of the Act, reads:

"4. .......

A three years' period becomes relevant
when there is a change of ownership. This
three years' period is a sort of moratorium
intended for the tenant's protection. It is to
be noted that the crucial expression in the
proviso is "and such notice may be given
even before the expiration of the aforesaid
period of three years". In other words,
notice can be given either before or after
the three years' period. After expiry of the
three years' period the protection given to
the tenant from being evicted has no further
relevance. Thereafter it is only the question
of notice.

5. Above being the position the
decision in Martin & Harris Ltd. case
[(1998) 1 SCC 732] expressed the correct
view. Unfortunately, the said decision does
not appear to have been placed before the
Bench which heard Anwar Hasan Khan
case [(2001) 8 SCC 540] ."

23. It has been argued by the learned
Counsel for the landlord that a notice
under the first proviso to Section 21 of the
Act was indeed served and was part of the
record of the Prescribed Authority vide
list, Paper No. 65. This Court does not
wish to comment on the said issue,
because we are of opinion that the matter
requires to be re-determined by the
Appellate Authority after hearing the
parties afresh, bearing in mind the correct
position of the law. The fact whether a
notice under the first proviso to Section 21
of the Act was served is an issue, which
the Appellate Authority ought to go into,
carefully examining the records. This is all
the more so because the Prescribed
Authority has not at all adverted to any
notice served under the first proviso to
Section 21 of the Act.

24. Since the hearing of the appeal
has been noticed to be slipshod and
irregular, where the tenants do not seem to
have been heard either at all or in an
irregular fashion, it would be apposite that
the appeal we propose to remand for
hearing afresh be heard in the manner that
the issue of mandatory compliance with
the requirement of notice, under the first
proviso to Section 21 of the Act, be
determined in the first instance. If the said
issue is answered in favour of the
landlord, the other two issues of bona fide
need and comparative hardship be also
heard and determined afresh. Needless to
say that in the event the issue of notice
under the proviso to Section 21 of the Act
is answered against the landlord and in
favour of the tenants, the other issues
would not require determination.

25. In view of what has been said
above, this petition succeeds and is
allowed in part. The impugned order
passed by the Appellate Authority in Rent
Appeal No. 86 of 2015 is hereby quashed.
The appeal is restored to the file of the
Appellate Authority, who will proceed to
hear
the
appeal
afresh,
affording
opportunity of hearing to both parties. The
appeal shall be decided bearing in mind
the guidance in this judgment. There shall
be no order as to costs.
12 All. Prem Singh Vs. The A.D.J. Gorakhpur & Ors.
909
----------
(2022) 12 ILRA 909
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 25479 of 2018

Prem Singh ...Petitioner
Versus
The A.D.J. Gorakhpur & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Adya Prasad Tewari, Sri Sheo Shankar
Tripathi

Counsel for the Respondents:
Sri Arvind Srivastava

Civil
Law
-
U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction )
Act, 1972-Section 21 (1)-Impugned order -
order of release -on ground of bona fide needAppeal -affirmation-Writ-landlady purchased the
demised premise and instituted proceedings
after three years-did not waited for period of six
months after service of notice upon tenant-to
vacate-if proceeding is against a sitting tenant
from time of the former landlord's ownership u/s
21-irrespective of the fact whether three years
moratorium u/s 21 has expired or notmandatory notice can be waived by the tenant-
belated plea about want of notice through an
amended ground in Appeal by tenant-rightly not
accepted by Appellate Authority.

Petition dismissed. (E-9)

List of Cases cited:

1 Smt. Kalpana Gulati & ors. Vs 8th Addl. D.J.
Allahabad & ors., (1999) 2 AWC 1656

2 Izhaar Ali & anr. Vs Prescribed Authority/
J.S.C.C., Sitapur & ors., (2014) 107 ALR 88

3 Martin & Harris Ltd. Vs VIth Additional Distt.
Judge & ors., (1998) 1 SCC 732

4 Anwar Hasan Khan Vs Mohd. Shafi & ors.,
(2001) 8 SCC 540

5. Nirbhai Kumar Vs Maya Devi & ors., (2009) 5
SCC 399
(Delivered by Hon'ble J.J. Munir, J.)

This writ petition has been filed by
Prem
Singh,
now
deceased
and
represented by his heirs and LRs, assailing
two orders of release, passed under
Section 21(1)(a) of The Uttar Pradesh
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (U.P. Act
No. 13 of 1972) (for short, ''the Act'),
relating to two distinct tenements in House
No. C/105/119, Tehsil Sadar, District
Gorakhpur. The orders of release passed
separately by the Prescribed Authority
relating to both the tenements in House
No. 105/119 (supra), for short, 'the house
in question', have been affirmed in two
separate
appeals
by
the
Appellate
Authority, under Section 22 of the Act,
both the appeals being preferred by Prem
Singh.

2. The facts leading to this writ
petition are these: Smt. Uma Shukla,
mentioned in the cause title of the writ
petition as Smt. Uma Devi Shukla, wife of
Basant Shukla, instituted two separate
proceedings under Section 21(1)(a) of the
Act
against
two
different
tenants,
occupying different parts of the house in
question. P.A. Case No. 37 of 2013 was
instituted by Smt. Uma Shukla (for short,
'the landlady') against Smt. Prabhawati
Devi widow of the late Seeta, Shrawan and
Gopal, both sons of the late Seeta, seeking
release of the part of the house in question