SHISHIR KUMAR,J. - (1.) HEARD learned counsel for the petitioner Sri Dubey and learned counsel for the respondent.
(2.) THIS writ petition has been filed by the tenant for quashing the order dated 23.7.2009 and order dated 1.5.2007. The respondent who is land lord of the property situated at Mohall Mohani Baba as House No. 216/217, Road No. 179/180/1, District- Jhansi. It originally belongs to one Safiq Hassan Khan and Ausad Hassan Khan and the husband of the petitioner tenant since last 60 years of one room. The respondent filed an application under Section 21 of the Act for reliance of the said accommodation after giving notice of six months on the question of arrears of rent and ejectment, the suit was dismissed. Then a revision has been filed by respondent, has also been dismissed. Then a proceeding under section 12(1) A of the Act No. 13 of 1972 was initiated against the petitioner. It was pleaded by the respondent land lord that in view of section 21(1) (A) explanation of the petitioner's son has constructed the house in the same city and who is normally residing with him therefore, the objection of the petitioner may not be considered. Further it has been said that in view of the applicant averment made in the written statement filed by the petitioner tenant that they living in a one room, husband and wife, son and daughter-in-law and other sons. The Prescribed Authority after regarding finding that it is admitted to the petitioner tenant that he is having plot of 15 Barg Gaj in the same city and has constructed the house. That a finding has been recored that the application was made by the land lord to inspect the site but that was opposed and ultimately that application was rejected. The court has recorded a finding that this case indicates that correct fact will come in case the inspection is made. Further a finding has been recored that admittedly land lord is living in the house of elder brother and he has to vacate the said accommodation therefore in such circumstances the prescribed authority has recorded a finding of fact that head of the land lord is more genuine and bona fide. The petitioner filed an appeal, his appeal has also been dismissed.
(3.) SRI Dubey learned counsel for the petitioner submits that he has challenged the validity of notice and stated before the Court that from the perusal of the notice, it does not appear that notice of six months as required under the Act was ever given. He placed reliance upon a judgment of the Court reported in Allahabad Rent Cases 2005 Volume-2 ARC Page-1 Manoj Kumar and Others Vs. Munni Devi and placed a reliance, para-4 of the judgment. "Shri Siddartha Bhatnagar, learned counsel for the appellants, has submitted that the landlord had applied for release of the shop under the tenancy of the appellants under Section 21 (1) (a) of UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) and the first proviso to said sub-section requires giving of notice by the landlord to the tenant not less than six months before filing of such application and as in the present case no such notice had been given, the release application was not maintainabale and was liable to be dismissed on this ground alone. Learned Counsel has submitted that the aforesaid provision has come up for consideration before this Court in Martin and Harris Ltd. V. Vth Addl. District Judge 1998 (1) SCC 732: 1998 (1) ARC 109 (SC) wherein it was held that the requirement of giving prior notice was mandatory. Challenge has also been raised to the findings recorded by the Appellate Authority in favour of the landlord and it has been urged that she had no bona fide requirement of the property and further the appellants would suffer greater hardship in the even of release of the shop in which they were carrying on business for a long time." ;