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2018 DIGILAW 146 (UTT)

Mukesh Kumar v. Mohan Lal

2018-04-02

MANOJ K.TIWARI

body2018
JUDGMENT : Manoj K. Tiwari, J. Both writ petitions are arising out of the same proceedings, under Section 21(1) U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act 1972 (hereinafter referred to as ‘U.P. Act no.13 of 1972’). Mohanlal (Landlord) has filed writ petition no. 883 of 2008 (M/S) challenging the order dated 31.05.2007, passed by the Prescribed Authority and also the order dated 07.11.2007, passed by the Appellate Court. Mukesh Kumar and another (tenants) filed writ petition no. 2491 of 2007 (M/S) challenging the order dated 07.11.2007, passed by the Appellate Court. 2. Since common question of law and facts are involved in both writ petitions, hence, both are being taken up together and decided by this common judgment. 3. Brief facts of the case are as follows: Mohan Lal (landlord) filed a composite release application under Section 21(1)(a) and 21(1)(b) of the Act no. 13 of 1972 against Mukesh Kumar and Suresh Kumar stating that the shop, which is under their tenancy, is bonafidely required for establishing his son in business. It was further stated that the said shop is in dilapidated condition, which needs to be demolished for construction of a new shop. It was further stated in the release application that Mohanlal (landlord) had purchased the said property by sale deed, which was registered on 09.12.1999. The said release application was filed on 17.02.2003 in the Court of Prescribed Authority/Civil Judge (Junior Division), Khatima and was registered as Rent Control Case No. 1 of 2003. The tenants filed written statement, disputing the bonafide need setup by the landlord in his application. Evidence was led by the parties, in support of their contention. Learned Prescribed Authority vide order dated 31.05.2017, rejected the release application by holding that landlord could not establish his bonafide need of the shop in question for establishing his son in business. Learned Prescribed Authority further held that the premises in question is not in dilapidated condition. Thus, landlord’s application, under Section 21(1) (a) as well as 21(1)(b) were rejected by the learned Prescribed Authority, vide judgment and order dated 31.05.2017. Landlord (Mohan Lal) thereafter filed an appeal, under Section 22 of the Act, which was registered as Rent Control Appeal No. 1 of 2007 before the Court of District Judge, Udham Singh Nagar. Learned Appellate Court recorded a finding that building is in dilapidated condition, therefore allowed landlord’s application under Section 21(1)(b). Landlord (Mohan Lal) thereafter filed an appeal, under Section 22 of the Act, which was registered as Rent Control Appeal No. 1 of 2007 before the Court of District Judge, Udham Singh Nagar. Learned Appellate Court recorded a finding that building is in dilapidated condition, therefore allowed landlord’s application under Section 21(1)(b). However, regarding landlord’s application under Section 21(1)(a), learned Appellate Court held that since six months notice as contemplated under Ist proviso to Section 21(1) was not given to the tenants, before filing release application, therefore, Prescribed Authority was not justified in considering the bonafide need of the landlord. Thus, appeal of the landlord was allowed partly to the extent of his application under Section 21(1)(b). 4. Both, landlord and tenants, have challenged the judgment and order dated 07.11.2007 passed by the Appellate Court by filing separate petitions. Landlord has filed writ petition no. 883 of 2008 (M/S) in which, order passed by the Prescribed Authority is also challenged. 5. Learned counsels appearing for the tenants submit that the learned Prescribed Authority has considered the matter in detail and recoded a finding that the building in question is not in a dilapidated condition. They further submit that learned Prescribed Authority has held that the conditions mentioned in Rule 17 of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Rules, 1972 are not satisfied. Thus according to learned counsels, it was incumbent upon learned Appellate Court to reverse these findings before allowing the release application under Section 21(1)(b) of the Act. According to them, judgment dated 07.11.2007 is liable to be set aside, only on the score that the Appellate Court has reversed the judgment given by learned Prescribed Authority without adverting to the finding given by the Prescribed Authority. 6. Mr. Sudhir Kumar, learned counsel appearing for the landlord has assailed the impugned order dated 07.11.2007 mainly on the ground that learned Appellate Court refrained from considering landlord’s bonafide need, only on the ground that six months notice, as contemplated in Ist proviso to Section 21(b), was not given to the tenants. 6. Mr. Sudhir Kumar, learned counsel appearing for the landlord has assailed the impugned order dated 07.11.2007 mainly on the ground that learned Appellate Court refrained from considering landlord’s bonafide need, only on the ground that six months notice, as contemplated in Ist proviso to Section 21(b), was not given to the tenants. This, according to learned counsel for the landlord is erroneous, in view of the law laid down in the case of Martin & Harris Limited vs. VIth Additional District Judge & Ors reported in 1998 (1) SCC 732 By referring to written statement filed by the tenant before Prescribed Authority, he submits that no objection, regarding maintainability of release application for want of six months notice was taken, therefore in view of Martin & Harris Limited case (Supra.) the tenant shall be deemed to have waived the protection given by the Ist Proviso to Section 21(1)(a) of the Act. 7. The precise submission of learned counsel for the landlord is that requirement of six months notice under Ist Proviso to Section 21(1)(a) of the Act can be waived as held in the case of Martin & Harris Limited (Supra). Paragraph no. 13 of the judgment is extracted below: “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 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 as found in the proviso would give the tenants concerned a locus penintentiae 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 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 on 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 in which while accepting that Section 80 of the Code of Civil Procedure 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. 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 Goral 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 at page 72 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 noncompliance 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 reasons best known to it, consciously and being alive to the clear factual situation that the suit was filed on the 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 favorable 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.” 8. I have gone through the judgment rendered by learned Appellate Court. 9. Learned Appellate Court has not adverted to the reasoning or finding given by learned Prescribed Authority and has also overlooked the requirement of Rule 17 of the Rules. Moreover, the appellate court has reversed the judgment without disturbing the finding recorded by the learned Prescribed Authority. Learned Appellate Court has also not considered the question as to whether tenant would be entitled to the protection of Ist Proviso to Section 21(1)(a) of the Act, when he has not raised any objection, regarding maintainability of the release application for want of six months notice, in his written statement. 10. Under these circumstances, this Court is left with no other option but to remand the matter to the Appellate court for fresh decision. 11. Accordingly, the judgment and order dated 07.11.2007 passed in Rent Control Appeal No. 01 of 2007 is set aside. Both the writ petitions are partly allowed. Matter is remanded to the Appellate Court for reconsideration. Both the parties are directed to appear before the learned Appellate Court/District Judge, Udham Singh Nagar on 23.04.2018. 11. Accordingly, the judgment and order dated 07.11.2007 passed in Rent Control Appeal No. 01 of 2007 is set aside. Both the writ petitions are partly allowed. Matter is remanded to the Appellate Court for reconsideration. Both the parties are directed to appear before the learned Appellate Court/District Judge, Udham Singh Nagar on 23.04.2018. It is hoped and expected that the learned court below shall hear and decide the matter, in accordance with law, as expeditiously as possible, preferably within four months from the date of production of certified copy of this order. 12. Pending application, if any, also stands disposed of.