Lalit Kumar S/O Raja Ram Vs District Judge Raebareli and Ors.

Neutral Citation No. - 2025:AHC-LKO:10786

Court No. - 7

Case :- WRIT - A No. - 1000159 of 2010

Petitioner :- Lalit Kumar S/O Raja Ram Respondent :- District Judge Raebareli And Ors. Counsel for Petitioner :- Bireshwar Nath,Ashok Kr.Verma,Sanjay Kumar Counsel for Respondent :- A.K. Srivastava

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Hon'ble Pankaj Bhatia,J.

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Heard learned counsel for the petitioner and Shri Sandeep Kumar holding brief of Shri A.K. Srivastava, learned counsel for the respondents.

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A request has been made on behalf of learned counsel for the respondents for the matter being passed over, however, as the case is of the year 2010, I am not inclined to pass over the matter. The matter was heard.

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Learned counsel for the petitioner argues that the petitioner having purchased the property in question by means of a sale deed moved an application for release of the premises under Section 21(1)(a) of the U.P. Act No.13 of 1972. The said application was decided by the Prescribed Authority under the U.P. Act No.13 of 1972 wherein, the Prescribed Authority was of the view that the need as set up in the application was bonafide on the comparative hardship, the issue was decided against the tenant. The said decision of the Prescribed Authority passed on 24.02.2010 was challenged in an Appeal No.14 of 2010. The said appeal came to be allowed on 12.08.2010. In the appeal, it was pleaded by the tenant/appellant that the petitioner was not the landlord in respect of the shop in occupation. It was also pleaded at the appellate stage that the notice prescribed after purchase of the property was not issue. It was also pleaded

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that the shop in question was one shop and by means of a sale deed, an attempt was made to partition the shop, which was not permissible.

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The appellate court after hearing the appeal recorded that the issue with regard to the relationship of the landlord and tenant was pending consideration in Suit No.394 of 2000. It was also recorded that no notice was served, which was mandatory in terms of the explanation to Section 21(1)(a) of the U.P. Act No.13 of 1972. It was also recorded that the landlord had not offered any alternate premises to the tenant and based upon these grounds, the release application was rejected and the appeal was allowed. Challenging the said order, present writ petition has been filed.

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The submission of learned counsel for the petitioner is that the appellate order was passed on 12.08.2010 and the Suit No.394 of 2010 instituted by the tenant against the petitioner was pending on the said date, ultimate the said suit came to be decreed on 14.08.2012. The tenant was the plaintiff of the said suit and one of the issue with regard to the landlord and tenant relationship was framed and decided in the said suit in favour of the tenant, who was plaintiff in the said suit. The suit was decreed on 14.08.2010 restraining the respondents including the petitioner from evicting the plaintiff of the said suit except in accordance with law.

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He thus argues that the issue with regard to the landlord and tenant relationship, stood adjudicated vide judgement dated 14.08.2012 and thus, the appellate court's view on that court looses relevance. He further argues that plea with regard to non service of notice as six months as prescribed under Section 21(1)(a) of the U.P. Act No.13 of 1972 was not even pleaded in the written statement filed by the tenant and before the

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Prescribed Authority and thus there would be a waiver which aspect was dealt with by Hon'ble Supreme Court in the judgement in the case of Nribhai Kumar versus Maya Devi & Ors; 2009 (5) SCC 399 , wherein Hon'ble Supreme Court was of the view that the provision under Section 21(1)(a) of the U.P. Act No.13 of 1972 with regard to the service of notice was mandatory, however, the same could have been waived.

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In the light of the said judgement, it is argued that once the tenant had not taken the said plea in the written statement, the same would amount to waiver. Reliance is also placed upon another judgement of Hon'ble Supreme Court in the case of Ravi Khandelwal vs Taluka Stores; (2023) 7 SCC 720 , wherein, the Hon'ble Supreme Court held as under:

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“ 15. In order to analyse the expression used in Section 14(3) of the said Act, we think it is appropriate to consider the objective of this provision. This provision is for the protection of a tenant. The objective is that from the date a tenant acquires a right, he must have a right to continue in the premises for a period of five years, subject to his fulfilment of the terms and conditions of the lease.

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16. When we turn to the facts of the present case, what stares us in the face is that while the suit may have been defectively instituted within five years of the tenancy, more than 38 years have now elapsed since the suit was filed. We opine that this passage of time beyond the period of five years would wash away the initial impediment against the suit. We cannot lose sight of the fact that we stare at a factual scenario where the vagaries of litigation have prolonged the suit proceedings for a period of 38 years. The plea of the respondent is that the appellant should be asked to file a fresh suit — perhaps their confidence stems from the fact that if the tenant has already been able to prolong the proceedings for 38 years, a similar scenario would again follow. We are not able to countenance such an interpretation which would defeat the very purpose of creating an initial restriction on the filing of the suit. To say that the landlord should now, once again, restart the proceedings because the initial period of five years had not elapsed, even as now 38 years have elapsed, would be a travesty of justice.

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17. Whether the expression used is “shall lie” or “be entertained”

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would really make no difference. The objective is to create an impediment in the institution and trial of the suit for a period specified under the said Act. We are in agreement with the view adopted in B. Banerjee case [B. Banerjee v. Anita Pan, (1975) 1 SCC 166] that the spirit of protection is fulfilled with the passage of the prescribed time period, and the filing of a fresh suit would lead to unnecessary multiplicity of litigation. No doubt B. Banerjee case [B. Banerjee v. Anita Pan, (1975) 1 SCC 166] dealt with the constitutional validity of a retrospective amendment and whether the bar could be applied to pending litigation, but that itself would not dilute its ratio.

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18. We are thus of the view that the objective of Section 14(3) of the said Act, being the safeguarding of the tenant for five years, was subserved by the proceedings going on for the requisite period of time and beyond it within which the tenant could not have been evicted. As noticed, in fact the proceedings have gone on for 38 years, which itself is extraordinary.”

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In light of the aforesaid judgement, it is argued that the order impugned is liable to set aside.

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Considering the submissions, the appellate court had allowed the appeal holding that the notice was not served as prescribed under Section 21(1)(a) of the U.P. Act No.13 of 1972. The said finding is clearly perverse inasmuch as there was no pleading of the tenant before the Prescribed Authority to that effect and in absence of the pleading, there would be deemed waiver of the said objection.

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The second reasoning given by the appellate court with regard to the pendency of the suit in respect of the title, was unwarranted as the appellate court was required to see the relationship of landlord and tenant in the context of definition of the 'tenant' as defined under Section 3(g) of the U.P. Act No.13 of 1972. In any case the said finding looses relevance after the said suit decreed in the year 2012, wherein the relationship of landlord and tenant was adjudicated and the said judgement dated 14.08.2012, is final in between the parties

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insofar as the said relationship is concerned. The appellate court has also erred in allowing the appeal on the ground that the tenant was not offered alternate accommodation. In the Act or Rules, there is no such prescription or liability of the landlord to offer an alternate premises to the tenant.

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In view of the said finding, disagreeing with the findings recorded by the appellate court as recorded above, the order dated 12.08.2010 cannot be sustained and is quashed. The order passed by the Prescribed Authority releasing the premises is upheld, the order of the Prescribed Authority shall be executed with all expedition in accordance with law.

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The writ petition is disposed of .

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Order Date :- 19.2.2025 Anupam S/-

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Digitally signed by :- ANUPAM SINGH PATEL High Court of Judicature at Allahabad, Lucknow Bench

Lalit Kumar S/O Raja Ram v. District Judge Raebareli and Ors.

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