# Shamshul Hasan v. Saleem Khan & Anr

- **Citation:** (2020) 6 ILRA 610
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-13
- **Case number:** Matters Under Article 227 No. 9782 of 2019
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shamshul-hasan-v-saleem-khan-anr-45865
- **Pages:** 5

## Headnote

U.P. Act No. 13 of 1972 -Section 21 (1) (a)
-Landlord-Respondents filed suit for release of
suit
property-against
Petitioner-tenant-It
is
barred by mandatory provision of section 21 (1)
(a) of U.P. Act No. 13 of 1972-not complied-as 6
months
mandatory
notice
not
given
to
Petitioner-Impugned orders of Court belowillegal.

Writ Petition allowed . (E-9)

List of cases cited:-

## Text

610 INDIAN LAW REPORTS ALLAHABAD SERIES
been made by him in application 123Ga
since the petitioner knew that the document
is insufficiently stamped and is not
admissible in evidence. Therefore, applying
the ratio laid down in the above-referred
cases,
this
court
finds
that
Application155Ga is barred by principles
of constructive res-judicata.

32.

Thus,
given
the
above
discussion, this court does not find any
illegality in the orders passed by the trial
court as well as revision court in rejecting
application 155Ga.

33. Consequently, for the reasons
given above, the writ petition under Article
227 of Constitution of India lacks merit and
is accordingly, dismissed. There shall be
no order as to costs.
----------
(2020)06ILR A610
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.02.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters Under Article 227 No. 9782 of 2019
(Civil)

Shamshul Hasan ...Petitioner
Versus
Saleem Khan & Anr. ...Respondents

Counsel for the Petitioner:
Sri Manish :Tandon

Counsel for the Respondents:
Sri Siya Ram Verma, Sri Prateek Sinha

U.P. Act No. 13 of 1972 -Section 21 (1) (a)
-Landlord-Respondents filed suit for release of
suit
property-against
Petitioner-tenant-It
is
barred by mandatory provision of section 21 (1)
(a) of U.P. Act No. 13 of 1972-not complied-as 6
months
mandatory
notice
not
given
to
Petitioner-Impugned orders of Court belowillegal.

Writ Petition allowed . (E-9)

List of cases cited:-

1. Lakshmi Shankar Mishra Vs. Smt. Vineeta
Richhriya 2017 (2) ARC 754

2. Abdul Jabbar Vs. VIIth ADJ, Gorakhpur 1989 (1)
ARC 277

3. Writ A No.72134 of 2010 (Anoop Kumar and
Others Vs. Doongermal Singodiya and Another)

4. Writ A No.12289 of 2019 (Pradeep Kumar @
Pradeep and Another Vs. Smt. Meena Devi Sahu
and Another).

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
petitioner and Sri Prateek Sinha, Advocate
holding brief of Sri Siya Ram Verma, learned
counsel for the respondent.

2. Petitioner is a tenant of Aahata No.565
Quarter No.3 (565/3), Rail Bazar, Meerpur
Cantt., Kanpur Nagar (hereinafter referred to as
'suit property') at Rs.60/- per month. The
petitioner has assailed the judgement and order
dated
14.12.2017
passed
by
Prescribed
Authority/Civil
Judge
(Senior
Division),
Kanpur Nagar allowing the release application
instituted by respondent nos.1 & 2 registered as
Rent Case No.16 of 2013 (Saleem Khan and
Another Vs. Shamshul Hasan) and order dated
06.09.2019 passed by Additional District Judge,
Court No.12, Kanpur Nagar dismissing the
Rent Appeal No.4 of 2018.
3.

The
respondent nos.1 and 2 being owner and
landlord of the suit property filed an
application under Section 21 (1)(a) of U.P.
Act No.13 of 1972 for release of the suit
property. It is stated in the release
application that the respondents have
6 All. Shamshul Hasan Vs. Saleem Khan & Anr. 611
purchased the suit property from its
erstwhile owner Smt. Akeela Jamal by
registered sale deed dated 23.06.2010. It
is
further
averred
that
family
of
respondents/landlord is big, details of
which have been stated in paragraph 5 of
the release application, therefore, suit
property is needed for their personal use
and occupation. It is also stated in the
release application that notice has been
sent to the petitioner-tenant for vacating
the suit
property. The said notice was replied by
the petitioner-tenant on 24.07.2012.

4. In the aforesaid case, petitionertenant filed objections. Besides taking
other plea, petitioner-tenant stated in
paragraph 23 of the objection that the
release application is barred by the
proviso to Section 21 (1)(a) of U.P. Act
No.13 of 1972 as six months mandatory
notice has not been given to the petitioner
by the respondents-landlord which is
mandatory requirement for filing release
application by the landlord as the
petitioner is the tenant of the suit property
since
before
its
purchase
by
the
respondents-landlord.

5. On the basis of aforesaid pleadings,
the Prescribed Authority framed three issues.
The issue no.1 was as to whether notice given
by the respondent-landlord was valid; issue
no.2 as to whether there was any relationship
of landlord and tenant between the parties;
issue nos.3 & 4 in respect of bona fide need
and comparative hardship.

6. On the issue no.1 the Prescribed
Authority held that notice was given on
10.07.2012 and six months notice period has
elapsed before filing the release application,
therefore, requirement of proviso to Section
21 (1)(a) of U.P. Act No.13 of 1972 is
fulfilled
and
release
application
is
maintainable. The trial court after appreciating
the evidence and material on record decided
the issue of bona fide need and comparative
hardship in favour of respondent-landlord.

7. The petitioner-tenant, thereafter,
preferred Rent Appeal No.4 of 2018 under
Section 22 of U.P. Act No.13 of 1972 which
was also dismissed by the Additional District
Judge, Court No.12, Kanpur Nagar by
judgement and order dated 06.09.2019
whereby he has affirmed the finding of
Prescribed Authority.

8. Challenging the aforesaid orders,
learned counsel for the petitioner has
contended that notice dated 10.07.2012, copy
of which is annexed as Annexure 1 to the writ
petition, does not meet the requirement of
proviso to Section 21 (1)(a) of U.P. Act No.13
of 1972 inasmuch as the said notice does not
state the fact that respondents-landlord want
release of the suit property for their personal
use and for which they would initiate legal
proceedings. In support of his submission, he
has placed reliance upon the judgement of this
Court in the case of Lakshmi Shankar
Mishra Vs. Smt. Vineeta Richhriya 2017 (2)
ARC 754 and also in the case of Abdul
Jabbar Vs. VIIth ADJ, Gorakhpur 1989 (1)
ARC 277.

9. The submission is that the court
below while returning the finding on issue
no.1 against the petitioner has failed to
consider this relevant aspect of the matter,
and as notice dated 10.07.2012 was
invalid, therefore, mandatory requirement
of notice as contemplated in proviso to
Section 21 (1)(a) of U.P. Act No.13 of
1972 has not been complied with,
therefore, the release application was not
maintainable. He further contends that
finding of Prescribed Authority on the
612 INDIAN LAW REPORTS ALLAHABAD SERIES
issue of bona fide need is also not correct
inasmuch as respondents-landlord have
got released one house adjacent to the suit
property and some portion of that house
has been demolished by the landlord,
therefore, need set up by the landlordrespondents is not genuine and bona fide.

10. Per contra, learned counsel for
the respondents-landlord contends that
objection raised by the petitioner that
notice does not state the fact that
respondents-landlord
need
the
suit
property for their personal use has been
waived by the petitioner inasmuch as no
such case has been set up by the petitioner
in his written statement. He submits that
the only objection which has been raised
by the petitioner in the written statement
was that six months mandatory notice has
not been given, and thus, in view of the
said fact, the finding returned by the court
below
on
issue
no.1
that
release
application is not barred by proviso to
Section 21 (1)(a) of U.P. Act No.13 of
1972 is correct and based upon proper
appreciation of evidence and material on
record. In support of his aforesaid
submission, he has placed reliance upon
the judgement of this Court in Writ A
No.72134 of 2010 (Anoop Kumar and
Others Vs. Doongermal Singodiya and
Another) & Writ A No.12289 of 2019
(Pradeep
Kumar
@
Pradeep
and
Another Vs. Smt. Meena Devi Sahu and
Another).

11. On the issue of bona fide need,
he contends that finding of the courts
below is a finding of fact as the same has
been recorded after appreciating the
evidence and material on record and as
the petitioner has failed to point out any
perversity in the finding of courts below,
this Court may not interfere with the
findings of courts below in exercise of
supervisory jurisdiction under Article 227
of Constitution of India on the issue of
bona fide need and comparative hardship.

12. I have considered the rival
submissions of the parties and perused the
record.

13. Before adverting to the first
submission of learned counsel for the
petitioner as to whether notice dated
10.07.2012 meets requirement of a valid
notice contemplated under the proviso to
Section 21 (1)(a) of U.P. Act No.13 of
1972, it would be relevant to refer the
judgement of Lakshmi Shankar Mishra
(supra) relied upon by the learned
counsel for the petitioner. This Court after
noticing the various pronouncements of
this Court has laid down as to what a
notice should contain in order to meet the
requirement of substantial compliance of
proviso to Section 21 (1) (a) of U.P. Act
No.13 of 1972. Paragraph 16 of the said
judgement is extracted hereinbelow:-

"16. A careful reading of the
statutory provision and the object it seeks
to achieve, when seen in the light of the
aforesaid decisions, leads the court to
irresistible conclusion that for substantial
compliance of the requirement of the
proviso to sub section (1) of section 21 of
the Act, the purchaser landlord must: (a)
give a written notice to the tenant about
purchase of the building; (b) the notice
must indicate that the building is bona
fide required either in its existing form or
after demolition and new construction for
occupation by himself or any member of
his family in which connection he would
bring proceeding; and (c) the application
under section 21 (1) (a) should be filed
after six months of the service of notice.
The provision does not require that the
6 All. Shamshul Hasan Vs. Saleem Khan & Anr. 613
notice must by itself provide six months
time to vacate. What it needs to do is to
inform the tenant that the accommodation
is required by the landlord for the
purpose enumerated in clause (a) of sub
section (1) of section 21 of the Act in
which connection he intends to bring
proceeding. The proviso does not prohibit
issuance of a composite notice which
seeks arrears of rent as well as terminate
tenancy in addition to giving information
of
purchase
and
the
bona
fide
requirement of the purchaser landlord as
well as intention to bring proceeding in
that behalf. Therefore even a composite
notice seeking to terminate the tenancy
upon expiry of one month's period
coupled with information to the tenant
about
the
purchase
and
purchaser
landlord's requirement for the premises
with intent to bring proceeding in that
behalf would not render the proceeding
drawn under section 21 (1) (a) bad.
Because the purpose of the notice stands
achieved once sufficient information is
given to the tenant that the premises in
question has been purchased and the
same is bona fide required for the use and
occupation of the landlord or his family
members
and
that
in
due
course
proceeding would be drawn in that
behalf."

14. In the case of Abdul Jabbar
(supra), this Court has held the notice to be
invalid on the ground that such notice did not
state the intention of the landlord that he
wants the property for his personal use for
which he would file an application for release
against the petitioner under Section 21(1)(a)
of U.P. Act No.13 of 1972. Paragraph 14 of
the judgement is extracted hereinbelow:-

"14. I have examined the notice,
which has been annexed as Annexure 4 to this
petition. The property as stated above, was
purchased on 6th October, 1975. This notice
was given on 9th February, 1976. This notice
does not state at all as to any intention on part
of the landlord to file an application for
release against the petitioner under Section
21 (1) (a) of the Act nor does it ask the
petitioner to vacate the premises but it is only
a notice intimating the petitioner that the
landlord has purchased the property by a
sale-deed, dated 6th October, 1975. In the
circumstances, clearly, this notice cannot be
construed to be a notice under the proviso to
Section 21 (1) (a) of the Act. There is no
sufficient compliance of the mandatory
requirement of law."

15. It is explicit from the aforesaid two
judgements that for a notice to be valid and to
meet
the
substantial
requirement
of
compliance of proviso to Section 21 (1)(a) of
U.P. Act No.13 of 1972, a notice must
indicate clear intendment of the landlord that
he wants the property for his personal need
and for release of which he may file an
application under Section 21 (1)(a) of U.P.
Act No.13 of 1972.

16. In the light of above principles
laid down by this Court, it is to be seen
that the notice of landlord in the present
case meets the requirement of a valid
notice. It is manifest from the notice
that it does not state that the suit
property is bone fide required for the
personal use of the landlord or any
member
of
the
family
and
the
application under Section 21 (1) of the
U.P. Act No.13 of 1972 shall be filed
after the expiry of six months of the
notice.

17. Learned counsel for the
respondents-landlord also also could not
point out from the notice that the notice
614 INDIAN LAW REPORTS ALLAHABAD SERIES
recites any fact wherefrom it can be
inferred that the landlord wants suit
property for his personal use and
occupation, and for release of suit
property, he may file release application
under Section 21 (1) (a) of U.P. Act
No.13 of 1972. Thus, in view of the law
laid down by this Court in the case of
Lakshmi Shankar Mishra (supra) &
Abdul Jabbar (supra), this Court finds
that the notice in the present case does not
meet the requirement of a valid notice.

18. Now, the Court proceed to
consider the judgements relied upon by
the learned counsel for the respondents.
This Court in the case of Pradeep
Kumar @ Pradeep (supra) has held that
tenant may waive protection provided to
him under the first proviso to Section 21
(1) of the U.P. Act 1972 and if the
tenant has waived such protection, the
release application is maintainable. The
proposition of law as has been laid
down by this Court in the aforesaid case
is not applicable in the present case as it
is not the case of respondent-landlord
that tenant has waived the protection
available to him under the proviso to
Section 21 (1)(a) of U.P. Act No.13 of
1972.

19. In the case of Anoop Kumar
(supra) this Court found that defendants have
not raised any objection that the release
application is barred by the proviso to Section
21 (1)(a) of U.P. Act No.13 of 1972, and
accordingly, it held that release application is
maintainable as the defendants have waived
the protection available to them under the
proviso to Section 21 (1)(a) of U.P. Act No.13
of 1972.

20. Thus, in view of the foregoing
discussion, this Court finds that both the
courts below have acted illegally in
holding that the notice of termination of
tenancy is a valid notice and release
application is not barred by the proviso
to Section 21 (1)(a) of U.P. Act No.13
of 1972.

21. Since, this Court has held that
release application is barred by the
proviso to Section 21 (1)(a) of U.P. Act
No.13 of 1972, therefore, in the facts of
the present case, the other contention
advanced by learned counsel for the
parties are not dealt with.

22. For the reasons given above,
both the orders impugned are set aside.
The writ petition is allowed with no
order as to costs.
----------
(2020)06ILR A614
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.06.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

S.C.C. Revision No. 124 of 2018

Sri Surendra Nath Garg
 ...Revisionist (Defendant in Suit)
Versus
Sri Balbir Sharan Garg
 ...Respondent (Plaintiff in the suit)

Counsel for the Revisionist:
Sri Pramod jain, Sri Ashutosh Srivastava

Counsel for the Respondent:
Sri Madhav Jain, Sri Swapnil Kumar

A. Civil Law - Code of Civil Procedure,
1908-Section 115 - The Provincial Small
Cause Courts Act,1887- Section 25eviction and arrears of rent-notice terminating
the tenancy was served on the ground of a