- (1.) The petitioners, who are the landlords of the premises in dispute, are challenging the order of the Additional District Judge, Court No. 2, Jaunpur, dated 2nd September, 2006 by which he has rejected the appeal filed by the petitioners against the order of the Prescribed authority, dated 8th July, 2004. Briefly stated, the facts giving rise to the controversy involved in the writ petition, are that the petitioners purchased the shop in dispute on 17th March, 1997 from Mohd. Isha. Mohd. Yaqub was the tenant in the shop in dispute, who was carrying on the business of repairing of cycle and after his death his daughter, Smt. Johra Yaqub, became the tenant. However, in the shop in dispute, one Wasim Ahmad, the nephew of Mohd. Yaqub, is carrying on the business of cycle repairing and the shop is being occupied by him, alleged to be with the consent of Johra Yaqub, who is also now dead. The petitioners filed a release application in May, 2000, which has been registered as P.A. No. 3 of 2000, for eviction of the respondents from the shop in dispute. The respondents filed the written statement. Apart from denying various facts stated in the release application, in paragraph-34 of the written statement, it was contended that the shop in dispute was purchased in the year 1997, but no notice, as required under the proviso to Section 21(1) (a) has been given nor any such notice has been received by them, thus, the release application is not maintainable and is liable to be rejected to which the petitioners filed replica stating therein that on 1st February, 1999 a notice has been given to the defendant-respondents by registered post through Sri Riyaz Ahmad Advocate. A carbon copy of the registry receipt of such notice has been provided, but despite search being made, the original receipt of the registry could not be traced and also stated that in the absence of the original, the photo copy of the receipt of the registry is being filed.
(2.) By the order dated 8th July, 2004, the Prescribed authority allowed the release application and directed the defendant-respondents to vacate the shop in dispute within three months. Smt. Johra Yaqub and others filed the appeal against the said order, dated 8th July, 2004, which has been registered as Appeal No. 4 of 2005. In between 2004 and 2005, execution proceeding also took place, however, detail of such proceedings is not necessary for the purposes of the present case. The appellate authority allowed the appeal vide an order dated 2nd September, 2006 by setting aside the order dated 8th July, 2004, passed by the Prescribed authority. The appellate authority has allowed the appeal on the sole ground that the petitioners have not given notice prior to six months of filing of the release application as required under proviso to Section 21(1)(a) of Act No. 13 of 1972 and as such the release application was not maintainable. The appellate authority did not agree with the view of the Prescribed authority that in case of filing of the release application after expiry of three years from the date of the purchase of the property in dispute, notice, under proviso to Section 21(1)(a) of the Act, is not required to be issued. Aggrieved by the said order, the present writ petition has been filed.
(3.) Heard Sri Rama Kant Tiwari, learned counsel for the petitioners and Sri Ashok Kumar Tiwari, learned counsel, appearing on behalf of the respondents.;