S.P.Srivastava - (1.) FEELING aggrieved by an order passed by the appellate authority in the proceedings under section 21 (1) (a) of the U. P. Act No. 13 of 1972, negativing the claim of the tenant petitioner regarding the non maintainability of the release application filed by the respondent landlord for want of notice contemplated under the Ist proviso to section 21 (1) of the Act, the tenant petitioner has approached this Court seeking the quashing of the order passed by the appellate authority.
(2.) THE undisputed facts which emerge from the evidence and the materials on record are that the landlord had purchased the building of which the disputed premises forms part on 26-10-1976. A notice dated 1/4-10-1982 was issued by the landlord wherein the tenant petitioner was required to vacate the premises in question. THE aforesaid notice was duly served on the respondent. Initially a suit for ejectment of the tenant was filed in the Small Cause court on the basis of aforesaid notice, in which even though the tenant was found to be a defaulter, he was relieved of the decree of ejectment as he had satisfied the requirements envisaged under section 20 (4) of the said Act. It was thereafter that an application for release was filed by the petitioner under section 21 (1) (a) of the U. P. Act No. 13 of 1972 for the same accommodation and in support of its maintainability reliance was placed on the same notice on the basis where of the suit to which a reference has been made above had been filed. Initially the Prescribed authority dismissed the release application on the ground of its non- maintainability for want of notice. THE appellate authority however, has found the same notice to which a reference has been made above to be a valid notice and reversed the finding of the prescribed authority about the non maintainability of the release application for want of notice and has remanded the case for decision in accordance with the law. I have heard Shri K. M. Mishra learned Counsel for the petitioner and Shri Tarun Verma, learned Counsel representing the respondents. Learned counsel for the petitioner has contended that the notice relied upon by the landlord could not be deemed to be a notice as envisaged under the first proviso of section 21 (1) (a) of U. P. Act No. 13 of 1972, in as much as, it did not specify that the premises should be vacated within six months and further did not contain an averment that the release application will be filed after expiry of the aforesaid period. It was further contended that in any case, the aforesaid notice had to be treated as having become non-est on account of the filing of the suit on the basis thereof and as exhausted on that account. The contention of the learned counsel for the petitioner is that the notice but Iived its purpose which was the filing of the suit and in this view of the matter, it was necessary for the landlord to give a fresh notice in case, he wanted to initiate proceedings under section 21 (1) (a) of U P. Act No. 13 of 1912. This having not been done, it is asserted, the release application could not be entertained and was liable to be dismissed as not maintainable.
(3.) LEARNED counsel for the respondents however, has urged that the notice in the present case, was a composite/combined notice and satisfied the requirements envisaged under the provisions contained under section 20 (2) of U. P. Act No. 13 of 1972 as well as the requirements contemplated under the 1st proviso to section 21 (1) (a) of the aforesaid Act. It was further contended that the notice in question, could not, under the law be either treated as exhausted or non-est with the filing of the suit for ejectment find in the circumstances of the case could very well be availed of even for maintaining the release application. I have given my anxious thought to the rival contentions raised by the learned counsel for the parties and have also perused the record, A perusal of the aforesaid notice, a true copy of which has been filed as Annexure-4 to the writ petition shows that it is a combined/composite notice purporting to be a notice contemplated under section 20 (2) of the aforesaid Act as well as a notice envisaged under the 1st proviso to section 21 (1) (a) of the aforesaid Act. The aforesaid section along with the proviso is to the following effect x "21. Proceedings for release of building under occupation of tenant ?- (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 bonafide 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 by 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.........." ;