Swatantra Kumar and Others vs Sacchidanand Jaiswal

Hon''ble Dilip Gupta, J.—The tenant has filed this petition for quashing the order dated 29th May, 2008 passed by the Prescribed Authority by which the application filed by the landlord u/s 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ''Act'') for release of the shop in dispute was allowed. The petitioner has also sought the quashing of the judgment and order dated 30th November, 2011 by which the appeal filed by the tenant against the aforesaid order has been dismissed.

The application was filed by the landlord u/s 21(1)(a) of the Act on 22nd January, 2007 with the allegation that the tenanted property which had been purchased by him by means of the sale deeds dated 19th September, 1991 and 9th April, 2001 was bona fide required by the landlord. The tenant filed objections to the aforesaid application but did not take any specific plea that six months'' notice as is required to be served on the tenant under the first proviso to Section 21(1) of the Act had not been served on him. The Prescribed Authority allowed the application filed by the landlord by the order dated 29th May, 2008 against which an Appeal was filed u/s 22 of the Act which was dismissed by the judgment and order dated 20th August, 2010.

The petitioner filed Writ Petition No.68967 of 2010 to assail both these orders dated 29th May, 2008 and 20th August, 2010. This petition was allowed by the judgment and order dated 29th November, 2010 with a direction to the Appellate Court to determine whether there was a waiver of six months'' notice by the tenant. The said judgment is quoted below:

This is tenant''s writ petition. The landlord respondent no. 1, after purchasing the property in question from one Ram Shanker, made an application for release of the premises for bona fide need u/s 21(1)(a) of U.P. Act No. 13 of 1972, being Case No. 07 of 2007. The Civil Judge (Junior Division), Basti, after considering the pleadings of the parties and evidence brought on record, found that the need of the landlord is bona fide and therefore granted the release application. Not being satisfied with the aforesaid order of the Prescribed Authority, petitioner before this Court file an appeal u/s 22 of the U.P. Act No. 13 of 1972, which was numbered as Appeal No. 32 of 2008.The appeal has been rejected under the order dated 20.08.2010. It is against these two orders that the present writ petition has been filed.

On behalf of the petitioner it is contended that an specific objection was raised before the authorities below that notice, as required u/s 21(1)(a) proviso, was never forwarded by the subsequent purchaser/landlord nor was served upon the tenant and therefore the entire proceedings were vitiated. Service of such notice is condition precedent for initiation of proceedings u/s 21(1)(a). The said objection of the tenant has been rejected by the Appellate Court with reference to the judgment of the Hon''ble Supreme Court in the case of Anwar Hasan Khan Vs. Mohammad Shafi and Others, , wherein it has been held by a Bench of the Apex Court, comprising of two Hon''ble Judges, that if the period of three years and six months have elapsed, the requirement of notice, as contemplated by Section 21(1)(a) proviso, ceases to be applicable.

Counsel for the petitioner submits that the aforesaid conclusion arrived at by the courts below is legally not justified in view of the subsequent Three Judges'' judgment of the Supreme Court in the case of Nirbhai Kumar vs. Maya Devi and Others 2009(1) ARC 767, wherein the judgment in the case of Anwar Hasan Khan (supra) has been considered, as also an earlier judgment of Two Judges of the Hon''ble Supreme Court in the case of Martin and Harris Ltd. Vs. VIth Additional District Judge and Others, . Three Judges of the Hon''ble Supreme Court have specifically recorded that the judgment in the case of Anwar Hasan Khan has not taken note of the judgment in the case of Martin and Harris Limited. The Apex Court in the case of Nirbhai Kumar have explained the law afresh and have specifically held that a notice u/s 21(1)(a) proviso is mandatory and in absence whereof the proceedings for release of accommodation by a subsequent purchaser are legally not justified. However, the Hon''ble Supreme Court has further clarified that such proviso is intended for the benefit of the tenant and therefore if the tenant does not take any objection in written statement on the application filed u/s 21(1)(a) and does not press the aforesaid issue, it is to be deemed that he has waived the said right and in that situation even if the notice u/s 21(1)(a) proviso had not been issued, the proceedings would not be rendered bad.

Faced with the aforesaid contention Sri A.K. Gupta, counsel for the respondent stated that the plea qua the proceedings being bad for want of notice u/s 21(1)(a) proviso had been waived by the tenant in the facts of the case and, therefore, even if the reliance upon the judgment in the case of Anwar Hasan Khan may not be strictly correct, yet this Court may not interfere with the order impugned in view of the law as explained in the case of Nirbhai Kumar. In alternative he submitted that if this Court comes to a conclusion that the issue of waiver needs to be examined by the courts below, then the writ petition may be decided at this stage itself and the matter may be remanded to the court concerned for adjudicating the aforesaid aspect of the matter afresh in a time bound manner.

I have heard learned counsel for the parties and have gone through the records of the writ petition.

In view of Three Judges'' judgment of the Apex Court in the case of Nirbhai Kumar (supra), it is now well settled that a notice u/s 21(1)(a) proviso is mandatory before initiation of proceedings u/s 21(1)(a) for release of the accommodation by a subsequent purchaser. However, the Supreme Court has clarified that since such a provision is for the benefit of the tenant, he may, in a given case, be held to have waived the said benefit conferred upon him. For the purpose the Apex Court has noticed the conditions to be satisfied before such waiver can be pleaded or established.

In the facts of the case, this Court finds that the aforesaid aspect of the matter has completely been lost sight of by the first appellate court only because of the reliance placed upon Two Judges'' judgment of the Apex Court in the case of Anwar Hasan. The view expressed in the subsequent judgment in the case of Nirbhai Kumar, which is by a Bench comprise of larger number of Judges of the Apex Court, is binding and had to be taken to have laid down the correct law.

Therefore, this Court holds that the order of the appellate court, insofar as it records that no notice u/s 21(1)(a) proviso is required for initiation of proceedings for release of accommodation, is legally not justified and the order to that extent is liable to be quashed.

However, the issue remains as to whether in the facts of the case the tenant had waived his right/objections in that regard, as has been canvasedby the counsel for the respondent, or not. Since in thefacts of the case the issue has not been examined in that respect by the first appellate court, it would be appropriate that the matter may be remanded to the appellate court for examining the issue of waiver, as pleaded by the landlord, on the basis of the material on record and in light of the judgment of the Hon''ble Supreme Court in the case of Nirbhai Kumar (supra).

Accordingly, the order of the appellate court to the extent stated above is hereby quashed. The appeal is restored to its original number.

Let appellate court examine as to whether in the facts of the case there has been a waiver of the objection/right conferred upon the tenant under proviso to Section 21(1)(a) of U.P. Act No. 13 of 1973 or not. The aforesaid exercise may be completed within four months from the date a certified copy of this order is filed before the appellate court without granting any unnecessary adjournment to either of the parties. The order to be so passed shall determine the outcome of the appeal. No other point shall be examined. The findings of the appellate court on other issues is affirmed.

Writ petition is allowed subject to the observation made.

(Emphasis supplied)

The Appellate Court by the judgment and order dated 30th November, 2011 has dismissed the Appeal holding that the tenant had waived the right regarding service of such notice because such an objection was not taken by the tenant in the objections filed by him to the application filed by the landlord u/s 21(1)(a) of the Act.

Learned counsel for the petitioner has submitted that though the objection regarding requirement of six months'' notice as contemplated in the first proviso to Section 21(1) of the Act may not have been taken by the tenant in the objections filed by him, yet submissions were advanced by the counsel for the tenant during the course of hearing of the application before the Prescribed Authority and, therefore, it cannot be urged that the tenant had waived his right. It is also his submission that even in the memo of appeal such an objection was taken and during the course of hearing of the appeal such objection was also raised. He, therefore, submits that the Appellate Court committed an illegality in holding that the tenant had waived his right to receive the notice.

Sri Ashok Kumar Pandey, learned counsel appearing for the respondent-landlord has, however, submitted that all that was required to be seen by the Appellate Court after remand by the High Court was whether the tenant had waived his right of six months'' notice and the Appellate Court committed no illegality in holding that the tenant had waived this right since such objections were not taken by the tenant in the objections filed by him.

I have considered the submissions advanced by the learned counsel for the parties.

As noticed hereinabove, the High Court had remanded the matter to the Appellate Court to examine the matter in the light of the decisions rendered by the Supreme Court in Nirbhai Kumar Vs. Maya Devi & Ors. 2009 (1) ARC 767 and Martin and Harris Ltd. Vs. VIth Additional District Judge and Others, . The High Court in its judgment and order dated 29th November, 2010 on the basis of the aforesaid decisions came to the conclusion that though service of six months'' notice as provided under the first proviso to Section 21(1) of the Act is mandatory, yet since this benefit was for the tenant, it can be waived by him.

In Martin & Harris (supra) it was observed:

It is not possible to agree with the contention of the learned Senior Counsel for the appellant that the provision containing the proviso to Section 21(1) of the Act was for public benefit and could not be waived. It is, of course, true that it is enacted to cover a class of tenants who are sitting tenants and whose premises are subsequently purchased by landlords who seek to evict the sitting tenants on the ground of bona fide requirement as envisaged by Section 21(1)(a) of the Act, still the protection available to such tenants as found in the proviso would give the tenants concerned a locus poenitentiae to avail of it or not. It is easy to visualise that proceedings u/s 21(1)(a) of the Act would be between the landlord on the one hand and the tenant on the other. These proceedings are not of any public nature. Nor any public interest is involved therein. Only personal interest of landlord on the one hand and the tenant on the other hand get clashed and call for adjudication by the prescribed authority. The ground raised by the landlord u/s 21(1)(a) would be personal to him and similarly the defence taken by the tenant would also be personal to him. Six months'' breathing time is given to the tenant after service of notice to enable him to put his house in order and to get the matter settled amicably or to get alternative accommodation if the tenant realises that the landlord has a good case. This type of protection to the tenant would naturally be personal to him and could be waived.

It needs to be noticed that the Supreme Court in Anwar Hasan Khan Vs. Mohammad Shafi and Others, also interpreted the first proviso to Section 21 of the Act and, therefore, the matter was referred to by a Bench of three Judges in Nirbhai Kumar (supra) and after referring to the decision of the Supreme Court in Martin and Harris and Anwar Hasan (supra), the Supreme Court in Nirbhai Kumar observed as follows:

Consequently it must be held that the provision for six months'' notice before initiation of proceedings u/s 21(1) of the Act, though is mandatory and confers protection on the tenant concerned, it can be waived by him. On the facts of the present case there is no escape from the conclusion that the appellant, for reasons best known to it, consciously and being alive to the clear factual situation that the suit was filed on that ground prior to the expiry of six months'' notice, did not think it fit to pursue that point any further and on the contrary joined issues on merits expecting a favourable decision in the suit and having lost therein and got an adverse decision did not think it fit even to challenge the decision on the ground of maintainability of the suit while filing an appeal and argued the appeal only on merits and only as an afterthought at the stage of writ petition in the High Court such a contention was sought to be taken up for the first time for consideration. On the facts of the present case, therefore, it must be held that the appellant had waived that contention about the suit being premature having been filed before the expiry of six months from the date of the suit notice.

The Supreme Court in Martin & Harris Ltd. (supra) held that six months'' breathing time is given to the tenant after service of notice in order to get an alternative accommodation and this protection to the tenant can be waived by him. In Anwar Hasan Khan (supra) the Supreme Court held that the view taken in Martin & Harris Ltd. (supra) was the correct view.

In the instant case, as has been noticed by the Appellate Court, the application was filed by the landlord u/s 21(1)(a) of the Act on 25th January, 2007 to which objections were filed by the tenant on 7th May, 2007 but the objection that the landlord had not served on the tenant six months'' notice as contemplated under the first proviso to Section 21(1)(a) of the Act was not taken. The Prescribed Authority heard the matter on 29th May, 2008 and it is during the hearing of the application that oral objections were taken.

The tenant had not raised this plea in the objections filed by him to the application filed by the landlord u/s 21(1)(a) of the Act and, therefore, the Appellate Court committed no illegality in holding that the tenant had waived his right regarding service of the six months'' notice.

There is, therefore, no good reason to interfere with the impugned order.

The writ petition is, accordingly, dismissed.