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2017 DIGILAW 578 (UTT)

Pradeep Kumar Agarwal v. Mahesh Chandra Gupta

2017-11-02

SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. This writ petition which has been preferred by the tenant petitioners challenging the concurrent judgments rendered by the Prescribed Authority as well as the Appellate Authority on 19th November, 2012 and 16th December, 2016 respectively in Rent Control Case No. 4 of 2012 and Rent Appeal No. 22 of 2013, whereby, as a consequence thereto, the present petitioners who are opposite party Nos. 2 to 4 to the Release Application No. 4 of 2012, have been directed to vacate the premises, tenement, which has been defined in para 1 of the release application, which includes a house situated at Jwala Line, Tehsil Ramnagar, District Nainital (hereinafter, to be called as the tenement in dispute). 2. In accordance with the release application, the respondents, herein, contended that after the purchase of the property by him on 17th December, 2008, from its predecessors owner, they needed the property for their personal requirement and, as such, they sought release of the same. In the release application, in para 5 and 6, a following pleading was raised by the respondents to the effect that on 23rd March, 2009, a registered notice was served through counsel, which was received by the tenant on 24th March, 2009. It was a specific case that there was another notice sent to O.P. No. 2 on 26th August, 2009, through the Advocate of the present respondents, which was received on 31st August, 2009. Thereafter, third notice was sent on 8th October, 2009 by registered AD which was received by respondent Nos. 2 to 4, meaning thereby, at least from reading of para 5 and 5 of the release application, there have been a notice of intimation to the tenant petitioners to vacate the premises on account of bona fide need of the landlord. This will amount to complying the provisions of the first proviso to Section 21 (1) (a) of the Act No. 13 of 1972. 3. This will amount to complying the provisions of the first proviso to Section 21 (1) (a) of the Act No. 13 of 1972. 3. On account of the fact that, so far, the issue pertaining to the bona fide need and comparative hardship is concerned, these findings have been concurrently recorded by both the Courts below in favour of the respondent landlord, this Court, while exercising the power under Article 227 of the Constitution of India, this Court is refraining itself from making any observations on the concurrent finding of the fact, because they cannot be scrutinized de novo by this Court, while exercising extra ordinary jurisdiction of this Court as held by the Apex Court in Ranjit Singh’s case. Apart from it, because the learned counsel for the petitioner has confined his argument to the first proviso to Section 21 (1) (a) which contemplates, six month notice before such application is allowed. The proviso first to Section 21 (1) (a) of the Act reads as under : “Provided that where the building was in the 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;” 4. On receipt of notice to the release application, the opposite parties, who are the petitioners before this Court, had filed their written statement on 3rd July, 2012. In the reply, thus, submitted they have replied para 5 and 6 of the release application pertaining to the notice to vacate in the following manner :- ^^5- ;g fd izkFkZuki= iSjk u0 5 ds dFkuks dks izkFkhZ fl} djsA 6- ;g fd izkFkZuk i= iSjk u0 6 dFku dks izkFkhZ fl} djsA** 5. In the reply, thus, submitted they have replied para 5 and 6 of the release application pertaining to the notice to vacate in the following manner :- ^^5- ;g fd izkFkZuki= iSjk u0 5 ds dFkuks dks izkFkhZ fl} djsA 6- ;g fd izkFkZuk i= iSjk u0 6 dFku dks izkFkhZ fl} djsA** 5. On the reading of the reply extended to para 5 and 6, pertaining to the notice sent by the landlord, as a matter of fact, it would be treated as to be an evasive denial and it could be inferred that the petitioners do not deny the fact that the notice issued by the respondent, as referred in para 5 and 6 of the release application, was not received by them. Rather to the contrary, they do not raise any plea in the written statement pertaining to the impact of the proviso and thus, it would amount that the petitioner had waived off his right to contest the release on the ground of any impact which it could have by virtue of the effect of six months notice. 6. The Hon’ble Apex Court, while dealing with an identical issue in the case of Martin & Harris Ltd. Vs. District Jude reported in (1998) 1 SCC 732 , in its para 13 has observed that in the proceedings under Section 21 (1) (a), it is the tenant who has to protest as it is a protection which has been extended to him pertaining to the notice under first proviso to Section 21 (1) (a) of Act No. 13 of 1972 and if such protest is not lodged in the pleading, it would amount to be a waiver, as part of the tenant. 7. Identical view has been expressed by the Hon’ble Apex Court in the case of Krishan Lal Vs. State of J.& K. reported in (1994) 4 SCC 422 , wherein, the Hon’ble Apex Court was dealing with the theory of waiver as to under what circumstances the principle of waiver of a statutory remedy would take into effect. 7. Identical view has been expressed by the Hon’ble Apex Court in the case of Krishan Lal Vs. State of J.& K. reported in (1994) 4 SCC 422 , wherein, the Hon’ble Apex Court was dealing with the theory of waiver as to under what circumstances the principle of waiver of a statutory remedy would take into effect. In the said judgment, it has been held that once a statutory provision is existing in a statute and, during the course of the proceedings, if a defence is not taken or pressed in relation to the import of the said provision, on the proceedings, itself, it would amount to be a waiver of the benefits, if any, accruing from the said provision. 8. Based on the aforesaid two judgments, as referred above, the Hon’ble Apex Court, yet again, had occasion to consider the issue of waiver of the notice under the first proviso under Section 21(1)(a) in the case of Nirbhai Kumar Vs. Maya Devi and others reported in (2009) 5 SCC 399 , wherein, the Hon’ble Apex Court in its para 2 has observed as under :- “‘2. In Martin and Harris Limited's case (supra) it was held in para 13 as follows: “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 poenitentiae 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. 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. 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, 1995 (2) LLJ 718 SC 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 paragraphs 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. Govt. of the Province of Madras AIR 1947 PC 197 in which while accepting that Section 80 of the Code of Civil Procedure is mandatory, which was the view taken in Bhagchand Dagadusa v. Secy. of State for India-in-Council (1927) 54 IA 338 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. of State for India-in-Council (1927) 54 IA 338 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 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. 17. This point had come up for examination by this Court in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh [1964] 6 SCR 1001 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 Cal 61 ILR at p. 72 and some other decisions of the Calcutta High Court along with one of the 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 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 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. ” 9. The Hon’ble Apex Court has held that when such a plea with regard to the impact of the notice is not raised, there is no scape to the conclusion that the tenant for the reason best known to him has factually waived off his right and thus, such plea would not be available to him at a later stage. 10. The said judgment, in its para 4, has dealt with the import and the purpose of the first proviso to Section 21 (1) (a). It solely intends to provide a moratorium of the tenant to put his house in order for the difficulty which he may suffer on account of the accommodation being vacated. Since, in the instant case, the tenant was already noticed by the landlord, vide its notice dated 23rd March, 2009, 26th August, 2009 and 8th October, 2009, and since the release itself was allowed on 19th November, 2013, much after the expiry of six months period, it would amount to that the 8 purpose and intention of the first proviso to Section 21 (1) (a) stood satisfied. 11. 11. Hence, this Court feels that in the absence of there being any plea to the contrary raised by the tenant, he has waived off his right with regard to the plea of the first proviso to Section 21 (1) (a) and also that since he has not denied with regard to the receipt of the notice referred to in para 5 and 6 of the release application, it would be deemed that he had the knowledge of the probable eviction proceedings to be taken against him. 12. As such, the writ petition fails and is dismissed. No order as to costs. 13. The petitioners would vacate the premises within a period of six months from today subject to the condition that the petitioners submit an undertaking before the Prescribed Authority to the effect that they would be vacating the premises within the aforesaid period and would continue to remit the rent as paid by them during this period of six months. 14. Writ petition is dismissed. No order as to costs.