RAM MOHAN GUPTA Vs. LAXMI DEVI

JUDGEMENT

(1.) HEARD Sri Sanjay Agrawal, learned counsel for petitioner. This writ petition has been filed against an order dated 17.9.2009 (Annexure 3 to writ petition) by which application filed by petitioner has been dismissed on the ground that application under Section 21(1)(a) of the Act is not maintainable in view of proviso of Section 21(1)(a). It provides that no application shall be entertained on the ground mentioned in Clause-A unless and until a period of three years has elapsed since the date of such purchase and landlord has given a notice on that behalf to the tenant not less than six months before the application.

(2.) PETITIONER submits that property was purchased by respondent No.1 on 29.3.2007 and the application has been filed on 2.7.2008. Therefore, in view of provision of Section 21(1)(a) of the Act, application itself is not maintainable. Further submission has been made that in view of aforesaid provision, six months notice prior to the date of filing the application is necessary but no notice was ever given and directly an application without any notice has been filed. Therefore, the application itself is not maintainable but Prescribed Authority without considering the aforesaid facts and circumstances has dismissed the application vide its order dated 17.9.2009. Petitioner submits that in view of Apex Court judgment reported in 2001(2) Allahabad Rent Cases, 554, Anwar Hasan Khan Vs. Mohammad Shafi and others, application itself was not maintainable in view of observations and findings recorded in paragraph 10 of the said judgment. The same is being quoted below:-

(3.) TAKING support of aforesaid judgment, learned counsel for petitioner submits that prescribed authority has not recorded a finding that once the application is not maintainable in view of violation of notice and further three years period has not yet expired, in such situation, prescribed authority should have allowed the application and should have dismissed the application filed by respondents under Section 21(1)(a) of the Act. The Apex Court has interpreted that application itself is not maintainable before expiry of three years but in spite of aforesaid fact, application has been entertained and it is being considered on merits. It has only been rejected on the ground that order of releasing will not be passed and it will be passed after expiry of three years from the date of purchase. I have considered the submissions made on behalf of petitioner and have perused the record. As regards the contention raised by petitioner regarding validity of the notice, the application filed by respondent-landlord has not yet been decided. Regarding validity of notice whether it was necessary or mandatory in view of provision of Act, has to be considered and will be decided. At preliminary stage, it cannot be decided. It is not the case of petitioner that validity of notice has to be considered and decided as preliminary issue.