Judgment : Present petition is filed by the tenant / defenant / petitioner, herein, assailing the order dated 27.09.2014 passed by Prescribed Authority / Civil Judge, (SD), Nainital in Rent Control Case No. 25 of 2012 (Gopal Krishan Verma Vs. Tahir). 2. Brief facts of the present case, inter alia, are that tenant / petitioner, herein, was inducted as tenant in the tenanted portion (property, in dispute) by the then landlord / owner of the property; landlord / respondent, herein, purchased the property, in question, from the then owner vide sale deed dated 13.07.2009; landlord / respondent, herein moved an application under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 on 21.12.2012 seeking eviction of the tenant / petitioner on the ground of bona fide need; having received the notice of the suit (application) under Section 21 (1) (a) of the Act, tenant / petitioner, herein, moved preliminary objection on 05.02.2014 saying that application seeking eviction of the tenant / petitioner, herein, on the ground of bona fide need is not maintainable for want of six months notice, as mandated by first proviso of Section 21 (1) of the Act; learned Prescribed Authority, having placed reliance on the judgment of Hon’ble Apex Court in the case of Anwar Hasan Khan Vs. Mohd. Shafi and others reported in 2001 (8) SCC 540 was pleased to reject the application of the tenant / petitioner, herein, having observed that no six months’ notice is required to be served on the tenant because release application is moved, after expiry of period of three years from the date of purchase of property, in question, by the landlord. 3. Feeling aggrieved, tenant / petitioner, herein, has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 4. I have heard Mr. Siddharath Sah, Advocate for the tenant /petitioner and Mr. Sharad Sharma, Sr. Advocate assisted by Mr. H.M.Bhatia, Advocate for landlord/ respondent. 5. 3. Feeling aggrieved, tenant / petitioner, herein, has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 4. I have heard Mr. Siddharath Sah, Advocate for the tenant /petitioner and Mr. Sharad Sharma, Sr. Advocate assisted by Mr. H.M.Bhatia, Advocate for landlord/ respondent. 5. In the present case, learned counsel for both the parties do not dispute that property, in question, was purchased by the landlord / respondent on 13.07.2009 while release application was filed after expiry of period of three years on 21.12.2012, therefore, the only question remains to be decided is as to whether application under Section 21 (1) (a) of the Act can be moved and entertained by the court without serving the notice of six months, as required by first proviso of Section 21 (1) of the Act? 6. Hon’ble Apex Court in the case of Martin and Harris Ltd. Vs. 6th Additional District Judge and others reported in 1998 (1) SCC 732 was pleased to formulate three questions arising in that case, however, two questions formulated by their Lordships in the case of Martin and Harris (supra) are relevant in the present case too. Two relevant questions read as under: “In view of the aforesaid rival contentions the following points arise for our consideration: 1. Whether the respondent-landlord's application Under Section 21(1) (a) of the Act was not maintainable in view of the proviso to the said Section as it was filed before the expiry of three years from the date of purchase of the suit premises by the respondent. 2. Whether the said application was not maintainable on the additional ground that it was filed prior to the expiry of six months from the date on which notice was given by the respondent to the appellant as required by the very same proviso.” 7. While replying to question no. 1, Hon’ble Apex Court has held that application under Section 21 (1) (a) of the Act can be instituted before expiry of three years from the date of purchase of property, however, same can only be entertained and decided after expiry of three years from the date of purchase of property by landlord. 8. While replying to question no. 2 formulated by their Lordships, their Lordships were pleased to observe in paragraphs11 and 13, which read as under: “11. 8. While replying to question no. 2 formulated by their Lordships, their Lordships were pleased to observe in paragraphs11 and 13, which read as under: “11. So far as this point is concerned it must be held on the clear language of the first proviso to Section 21(1) of the Act that application for possession Under Section 21(1)(a) had to be filed by the landlord concerned not earlier than expiry of six months from the date of issuance of the notice by the landlord. On the facts of the present case it cannot be disputed that when the notice was issued on 20.09.1985 the application for possession could not have been filed by the respondent invoking the grounds mentioned in Clause (a) of Section 21(1) of the Act, at least till 20.03.1986, while the application was filed in January 1986. To that extent it can be said that the application was premature. The provision in this connection has to be treated to be mandatory. 13. 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 penitential to avail of it or not. It is easy to visualise that proceedings Under Section 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 Under Section 21(1)(a) would be personal to him and similarly the defence taken by the tenant would also be personal to him. 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 Under Section 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. In this connection we may profitably refer to a decision of this Court in the case of Krishan Lal v.State of J.K. 1994 (4) SCC 422 wherein Hansaria, J., speaking for a Bench of two learned Judges has made the pertinent observations concerning the question of waiver of a mandatory provision providing for issuance of notice to the parties sought to be proceeded against by the person giving the notice, in paragraph 16 and 17 of the Report as under : "16…... As to when violation of a mandatory provision makes an order a nullity has been the subject-matter of various decisions of this Court as well as of courts beyond the seven seas. This apart, there are views of reputed text writers. Let us start from our own one time Highest Court, which used to be Privy Council. This question came up for examination by that body in Vellayan Chettiar v. Government of the province of Madras AIR (1947) PC 197 in which while accepting that Section 80 of the CPC is mandatory, which was the view taken in Bhagchand Dagadusa v. Secretary of State for India in Council it was held that even if a notice Under Section 80 be defective, the same would not per se render the suit requiring issuance of such a notice as a precondition for instituting the same as bad in the eye of law, as such a defect can be waived. This view was taken by pointing out that the protection provided by the section 80 is a protection given to the person concerned and if in a particular case that person does not require the protection he can lawfully waive his right. This view was taken by pointing out that the protection provided by the section 80 is a protection given to the person concerned and if in a particular case that person does not require the protection he can lawfully waive his right. A distinction was made in this regard where the benefit conferred was to serve "an important purpose", in which case there would not be waiver (see paragraph 14). 17. This point had come up for examination by this Court in Dhirendra Nath Gorai v. Shudhir Chandra Ghosh and a question was posed in paragraph 7 whether an act done in breach of a mandatory provision is per force a nullity. This Court referred to what was stated in this regard by Mookherjee, J. in Ashutosh Sikdar v. Behari Lal Kirtania, ILR 35 and some other decisions of the Calcutta High Court along with one of patna High Court and it was held that if a judgment-debtor, despite having received notice of proclamation of sale, did not object to the non-compliance of sale, did not object to the non-compliance of the required provision, he must be deemed to have waived his right conferred by that provision. It was observed that a mandatory provision can be waived if the same be aimed to safeguard the interest of an individual and has not been conceived in the public interest." Consequently it must be held that the provision for six months' notice before initiation of proceedings Under Section 21(1) of the Act, though is mandatory and confers protection to 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 the 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 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.” 9. Undisputedly, judgment of Hon’ble Apex Court in the case of Martin & Harris (supra) was not cited before the Bench hearing the case of Anwar Hasan Khan Vs. Mohd. Shafi and others (supra), therefore, Hon’ble Apex Court has held that proceedings initiated for releasing the building in occupation of tenant on the personal ground after expiry of three years from the date of purchase of land does not require service of six months’ notice. 10. In view of the conflicting views between two Benches of Hon’ble Apex Court one in the case of Anwar Hasan Khan (supra) and second, in the case of Martin & Harris Ltd. (supra), matter was referred to larger Bench. Thereafter, three-Judge Bench of Hon’ble Apex Court in the case of Nirbhai Kumar Vs. Maya Devi and others reported in 2009 (5) SCC 399 has held that view of Hon’ble Apex Court in the case of Martin & Harris (supra) is the correct view and judgment rendered in the case of Anwar Hasan Khan does not lay down correct law. It has further been held by the Hon’ble Apex Court in paragraph 6 of Nirbhai case (supra), which reads as under: “A three years period becomes relevant when there is a change of ownership. It has further been held by the Hon’ble Apex Court in paragraph 6 of Nirbhai case (supra), which reads as under: “A three years period becomes relevant when there is a change of ownership. This three years period is a sort of moratorium intended for the tenant's protection. It is to be noted that the crucial expression in the proviso is "and such notice may be given even before the expiration of the aforesaid period of three years". In other words, notice can be given either before or after the three years period. After expiry of the three years period the protection given to the tenant from being evicted has no further relevance. Thereafter it is only the question of notice.” 11. In view of the judgments of Hon’ble Apex Court in the case of Martin and Harris (supra) and three-Judge Bench in the case of Nirbhai Kumar (supra), I find that settled position of law is that application under Section 21 (1) can be instituted before expiry of three years period from the date of purchase of property, however, shall be entertained and decided after expiry of three years from the date of purchase. To maintain application under Section 21 (1) of the Act, six months notice, as mandated by first proviso to Section 21 (1) of the Act is required to be served on tenant; such notice can be served either before the expiry of period of three years or after the expiry of period of three years from the date of purchase; and tenant if so wishes can waive such notice. If tenant raises objection that application seeking release of the building is not maintainable in view of non service of six months notice, it cannot be held that tenant has waived the notice. However, if tenant opts not to challenge the maintainability of the application at the earliest and opts to contest the application at its merit without challenging the maintainability of application, it must be held that tenant has waived the requirement of six months notice and in that event, he should not be permitted to take plea of maintainability at the later stage. 12. 12. In the case in hand, tenant has raised objection regarding the maintainability of the application even before filing of the written statement, therefore, in the peculiar facts and circumstances, it cannot be held that tenant has waived the requirement of service of six months’ notice. 13. Not only this, the Prescribed Authority has placed reliance on the judgment of Anwar Hasan’s case (supra) which has already been overruled by three-Judge Bench of Hon’ble Apex Court, therefore, in view of the above discussion, impugned order does not sustain in the eyes of law. 14. Consequently, writ petition is allowed. Impugned order is set aside. Application moved under Section 21 (1) (a) of the Act is held to be non maintainable and the same is rejected. However, landlord / respondent shall be at liberty to institute proceedings afresh for releasing of the property, in question, after service of six month notice, as required by first proviso of Section 21 (1) of the Act.