JUDGMENT S.D.Agarwala 1. This is a petition under Article 226 of the Constitution of India arising out of proceedings under section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter referred to as the Act). 2. The property in dispute is premises no. 101 situate in Askarganj, city of Gorakhpur. The petitioner, Abdul Jabbar is the tenant. Respondent no. 3 Firoz Alam Lari, is the landlord. On 6th October, 1975, the property in dispute was purchased by Firoz Alam Lari, the present landlord from the erstwhile owner. After purchasing the property, an application was filed under section 21 of the Act on 31st August, 1979. In this application, it was alleged that the landlord was residing in a rented house in Mohalla Khoonipur at a rent of Rs.38/- per mensum, of which Abdul Mannan was the landlord. It was alleged that the accommodation in occupation of the landlord was insufficient and, consequently, he required the disputed property for his use. 3. This application under section 21 of the Act was contested by the petitioner. The prescribed authority by an order dated 16th May, 1980 dismissed the release application, holding that the need of the landlord was not bonafide and genuine. 4. Aggrieved by this decision dated 16th May 1980, an appeal was filed by the landlord respondent no. 3 under section 22 of the Act. The appellate authority allowed the appeal by its judgment dated 24th April, 1981, which has been impugned in the present writ petition. 5. I have heard Sri G. C. Bhattacharya on behalf of the petitioner and Sri S. P. Srivastava on behalf of the respondent landlord. 6. Sri G. C. Bhattacharya has raised two contentions before me. His first contention is that under section 21 (1) (a) first proviso, it was mandatory for the landlord who is a subsequent purchaser to have given to the petitioner a notice of six months before he could move an application under section 21 (1) (a) of the Act. In the absence of a notice, the application for release under section 21 (1) (a) of the Act was not maintainable in law and, consequently, the property could not be released in favour of respondent no. 3. In the absence of a notice, the application for release under section 21 (1) (a) of the Act was not maintainable in law and, consequently, the property could not be released in favour of respondent no. 3. The second contention is that the finding recorded by the appellate court that the need of the landlord is bonafide and genuine, is a finding vitiated in law inasmuch as, firstly the appellate authority has carved out a new case for the landlord respondent and, secondly, on the ground that no reliance could be placed on the commissioner's report unless the objections to the said report has been decided by the appellate authority. Section 21 (1) of the Act till the first proviso, which is relevant for the purpose of decision of this writ petition is as follows :- " Section 21 (1) - The prescribed authority may, on an application of the landlord in this behalf, order the eviction of a tenant from the building under tenancy or any specific part thereof if it is satisfied that any of the following grounds exists namely :- (a) the building is bonafide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust for the objects of the trust :- Provided that where the building was in occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this 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 purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years. Provided........................ Provided........................ Provided........................ Provided........................ Provided......................." The first proviso quoted above provides that no application on grounds mentioned in clause (a) of section 21 (1) of the Act shall be entertained unless a period of three years elapses since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application. It has been further provided that such a notice may be given even' before the expiry of the period of three years. 7. From a reading of the aforesaid proviso, it is apparent that there are two conditions precedent before an application under section 21 (1) (a) can be entertained in respect of the landlord who has purchased a property which was already in occupation of the tenant. The first condition being that the application for release shall not be entertainable unless three years period has expired from the date of purchase and, secondly, unless the landlord gives six months' notice to the tenant before moving the application. 8. The words in the proviso 'in that behalf are very significant. The notice spoken of in the proviso is not merely a notice to the tenant of the factum of the purchase of the property by a subsequent landlord, but the notice has to be in regard to the fact that the purchaser wants to move an application for release under section 21 (1) (a) of the Act. The notice contemplated, in my opinion, is only an intimation to the tenant to the effect that the landlord wants to move an application for release in respect of the property which he has purchased. The legislative intent is that the notice should be in writing. It is not necessary, however, to state the grounds in the said notice but the notice should be specific and not vague intimating to the tenant that the purchaser bonafide required the building in question and the building be vacated within six months and if he does not vacate then the release application shall be filed against him. The providing of a notice by the Legislature appears to me, for the reason so as to give notice to the tenant of the fact that a release application will be filed by the purchaser and in the meanwhile the tenant may make an alternative arrangement for his residence, if he can so make. The providing of a notice by the Legislature appears to me, for the reason so as to give notice to the tenant of the fact that a release application will be filed by the purchaser and in the meanwhile the tenant may make an alternative arrangement for his residence, if he can so make. This notice, in my opinion, is mandatory because it is a condition precedent for the entertainment of an application under section 21 (1) (a) of the Act in respect of the purchaser of a property where a tenant had already been in occupation of the said property. In Smt. Nazuk Jahan v. Additional District Judge, 1981 ARC 530, the Hon'ble Supreme Court had an occasion to consider the nature of the notice to be given under the proviso to section 21 quoted above. It was observed by the court that the notice cannot be a casual or oral request to the tenant but a formal demand ordinarily in writing and clearly insisting on vacant possession after the requisite period. 9. In the instant case, it is not disputed that the question in regard to notice was not raised by the petitioner either before the prescribed authority or before the appellate authority. This question was for the first time raised in this Court. In paragraph 12 of the petition, it h3S been categorically stated that only one notice dated 9th February, 1976 was issued to the petitioner by the landlord and according to him, it was not a notice at all under the first proviso to section 21 (1) (a) of the Act. In reply to this paragraph in the counter affidavit, it has not been disputed that only this notice has been issued as stated by the petitioner but the submission of the learned counsel for the respondent is that it sufficiently complies with the terms of the proviso. 10. I have examined the notice, which has been annexed as Annexure-4 to this petition. The property as stated above, was purchased on 6th October, 1975. This notice was given on 9th February, 1976. 10. I have examined the notice, which has been annexed as Annexure-4 to this petition. The property as stated above, was purchased on 6th October, 1975. This notice was given on 9th February, 1976. This notice does not state at all as to any intention on part of the landlord to file an application for release against the petitioner under section 21 (1) (a) of the Act nor does it ask the petitioner to vacate the premises but it is only a notice intimating the petitioner that the landlord has purchased the property by a sale deed dated 6th October, 1975. In the circumstances, clearly, this notice cannot be construed to be a notice under the proviso to section 21 (1) (a) of the Act. There is no sufficient compliance of the mandatory requirement of law. Learned counsel for the respondent has urged that this question cannot be permitted to be raised by the petitioner at this stage in the petition. In my opinion, this question whether the notice has been given or not is not a matter of dispute. No factual question has to be decided- Admittedly only one notice dated 9th February, 1976 was given by the landlord before filing the release application and since this question goes to the root of the matter and on which depends the entertainment of the application under section 21 (1) (a) of the Act 'itself, the petitioner is permitted to raise this question before this court as it relates to the question of jurisdiction of the court to entertain the release application. 11. Learned counsel for the respondent has further urged that word 'entertained' used in the First Proviso should be taken to be equivalent to adjudication and, consequently, what was prohibited by the proviso was the adjudication of an application for the release under section 21 (1) (a) of the Act unless it was filed after the period prescribed by the said proviso and also after giving of the notice as required under the said proviso. In my opinion, this question does not arise in the present case. Here no notice had at all been given even before filing the application or before adjudication of the same. In the circumstances, it is not necessary for me to go into this question. 12. In my opinion, this question does not arise in the present case. Here no notice had at all been given even before filing the application or before adjudication of the same. In the circumstances, it is not necessary for me to go into this question. 12. In view of the above, in my opinion, the first contention of the learned counsel for the petitioner, is well founded The application under section 21 (1) (a) of the Act was not maintainable in law, and, consequently, no release could be ordered in respect of the premises in dispute. In regard to the second contention so far as the first aspect is concerned, the court, in my opinion, has not made out any third case. What the court was considering was as to whether after the property is released, will it be possible for the landlord to occupy the same for his use or not, and as such, it cannot be said that the funding in regard to the bonafide need recorded in this behalf, is vitiated in any manner. 13. In regard to the second aspect of the argument of the learned counsel for the petitioner, this in my opinion, has definitely vitiated the finding recorded by the appellate authority. The petitioner had filed objections to the report of the Commissioner. Admittedly the objection to the Commissioners' report had not been decided. The material finding against the petitioner has been recorded purely on the basis of the Commissioners' report. In the circumstances, it was incumbent upon the authorities to have considered the objections of the petitioner against the Commissioner's report. Further the question who was occupying the ground floor premises in occupation of the present landlord was a question which was dependant upon appreciation of the facts on record and the Commissioner's report could not be its sole basis. The appellate authority should have first disposed of the objections filed to the Commissioner's report and, thereafter, should have recorded a finding in regard to the occupation of the ground floor after considering other evidence on record which has not been done. In the circumstances so far this question is concerned, I agree with the learned counsel for the petitioner. 14. In the circumstances so far this question is concerned, I agree with the learned counsel for the petitioner. 14. In view of the second submission made by learned counsel for the petitioner, the matter should have been remanded to the appellate authority for decision afresh of the matter, but since I am of the opinion that the application under section 21 (1) (a) of the Act itself was not maintainable in law, the question of remand does not arise, I, however, observe that in case the landlord respondent gives a notice as required by the First Proviso of section 21 (1) (a) of the Act, it will be open to him to file a release application in respect of the disputed premises, which if filed, shall be considered in accordance with law. In the result, the petition is allowed. The order dated 24th April, 1981, is, hereby, quashed. The application under section 21 (1) (a) of the Act is dismissed. Parties are directed to bear their own costs. Petition allowed.