Prakash Krishna, J. - (1.) THE present writ petition arises out of the pro ceedings initiated by the petitioners who are landlords under section 21 of U.P. Act No. 13 of 1972 against the respondent No. 2, the tenant in respect of a non- residential accommodation (shop No. 14) situated at Chhoti Mandi, Hapur District Ghaziabad.
(2.) THE petitioners sought release of the said shop on the ground that it is bona fide required by them. THE said shop was purchased by the petitioners on 20.2.1991. THE application for release was filed on 1.7.1997. THE said release application was allowed by the Prescribed Authority by the order dated 6.9.1997. However, in appeal the said order has been set aside by the impugned order. THE appellate authority allowed the appeal on a short ground that the notice of six months, as required under section 21 of the Act, was not given. Proviso to section 21 (1) of the Act provides 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 the 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 acquisition and the landlord has given a notice in that behalf to the tenant not less than six months before such appli cation, and such notice may be given before the expiration of the aforesaid pe riod of three years. Learned Counsel for the petitioners rightly submits that the view taken by the Appellate Court is incorrect in view of the law laid down by the Apex Court in the case of Anwar Hasan Khan v. Mohd. Shaft and others, 2001 (45) ALR 568 (SC). The Apex Court has held that the notice, as contemplated under the said proviso, will be required when the release is sought for within a period of three years from the date of purchase. If the application for release is filed after a period of three years, notice of six months, as contemplated under the said proviso, is not required.
(3.) COMING to the facts of the present case, it is not in dispute that the property was purchased by the petitioners on 20.2.1991 and the application for release was filed after expiry of more than six years, on 1.7.1997. This being so, the judgment of the Court below cannot be sustained. Sri M.D. Singh Shekhar, learned Senior Counsel appearing on behalf of the contesting respondent also does not dispute the above proposition. He submits that even if the judgment of the Appellate Court is set aside, still the question of bona fide need and comparative hardship having not been consid ered, the matter should be remanded to the Appellate Court for recording nec essary findings on the said issue.;