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2019 DIGILAW 1357 (ALL)

Manju Sharma v. Sudha Sharma

2019-05-17

YOGENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : YOGENDRA KUMAR SRIVASTAVA, J. 1. Heard Sri Anil Kishore Sharma, learned counsel for the petitioners and Sri Suresh Chandra Tripathi and Sri Dharmendra Kumar Tripathi, learned counsel appearing for respondent nos.1, 2 and 3. 2. The present petition has been filed seeking to challenge the order dated 26.07.2014 passed by the Prescribed Authority/Civil Judge (Senior Division), Court No.8, Jaunpur whereby the application (Application No.4ga) filed by the respondent-landlords under Section 21(1)(a) of U.P. Act No.13 of 1972 for release of the premises in question, was allowed. The petitioners have also sought to challenge the order dated 18.03.2019 passed by the II-Additional District Judge, Jaunpur whereby Appeal No.05 of 2014 filed by the petitioner-tenants has been dismissed. 3. The only point which has been urged is that although a specific ground with regard to non-compliance of six months' mandatory notice in terms of the first proviso to Section 21 was taken in the grounds of appeal but the Appellate Authority while considering the issue of validity of notice has brushed aside the same by accepting the argument of respondent-landlords that since more than three years had elapsed from the date of purchase of the house in question, the requirement of six months' notice was not there. In this regard, the Appellate Authority has placed reliance upon the judgment in the case of Anwar Hasan Khan Vs. Mohd. Shafi & Ors., (2001) 8 SCC 540 4. Contention of the learned counsel for the petitioners is that the view taken in the aforementioned case of Anwar Hasan Khan was in conflict with the view taken in the earlier judgment in the case of Martin & Harris Ltd. Vs. VI-Additional District Judge & Ors., (1998) 1 SCC 732 and upon the matter being referred to the Larger Bench in the case of Nirbhai Kumar Vs. Maya Devi & Ors., (2009) 5 SCC 399 the reference was answered holding that the decision in the case of Martin & Harris (supra) expressed the correct view and that the notice under Section 21(1)(a) proviso was mandatory in nature. 5. In order to appreciate the controversy, the relevant statutory provision as contained under Section 21 of the U.P. Act No.13 of 1972 may be referred to:- "21. 5. In order to appreciate the controversy, the relevant statutory provision as contained under Section 21 of the U.P. Act No.13 of 1972 may be referred to:- "21. Proceeding for release of building under occupation of tenant.--(1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely-- (a) that the building is bona fide 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; (b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction: 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: x x x x x" 5. A plain reading of the first proviso to Section 21(1)(a) indicates that where the building is in occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of the U.P. Act No.13 of 1972, 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. It is further provided that such notice may be given even before the expiration of the aforesaid period of three years. 6. It is further provided that such notice may be given even before the expiration of the aforesaid period of three years. 6. The interpretation of the first proviso to Section 21(1)(a) came up for consideration before the Supreme Court in the case of Martin & Harris (supra), wherein it was held that the provision for six months' notice before initiation of proceedings under Section 21(1), though was mandatory and conferred protection on the tenant concerned, it was personal to him and he could waive it. The observations made by the Supreme Court in the case referred to above are 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. 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. 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 paragraphs 16 and 17 of the Report as under: (SCC p. 430) "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, (1947) AIR 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 vs. Secy. of State for India- in-Council, (1927) 54 IndApp 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, (see paragraph 14). 17. This point had come up for examination by this Court in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh, (1964) AIR SC 1300 and a question was posed in paragraph 7 whether an act done in breach of a mandatory provision is per force a nullity. 17. This point had come up for examination by this Court in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh, (1964) AIR SC 1300 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, 35 ILR(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." 7. 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." 7. Subsequently in the case of Anwar Hasan Khan (supra), it was held that the period for not initiating eviction against the tenant under Section 21(1)(a) proviso of the Act was three years and in no case for more than three years and six months and any proceedings initiated for release of building after the said period did not require the service of the notice of six months. The observations made in the aforesaid judgment are reproduced herein under:- "10. Keeping in mind the object of the Act to provide safeguards to the tenant, the first proviso to Section 21 of the Act was added to ensure that the unscrupulous litigants do not transfer properties only for the purposes of creating grounds for eviction of the tenant in occupation thereof. The aforesaid proviso, however, was not intended to put any restriction upon the owners of the property not to transfer it under any circumstances. To ensure that the sale transaction was valid and not mala fide, a statutory bar was created vide the aforesaid proviso for the transferee to seek the eviction of the tenant with respect to such purchased property. The proviso mandates that no application shall be entertained by the prescribed authority on the grounds mentioned in clause (a) of sub-section (1) of Section 21 of the Act unless a period of three years had elapsed since the date of such purchase. It further provides that no application under the said clause shall be entertained unless the landlord had given a notice to the tenant not less than six months before the filing of such application and such notice may be given even before the expiration of a period of three years. The object of the service of the notice is to furnish information to the tenant about the requirement of the landlord in order to enable him to search for an alternative accommodation or to find out as to whether the sale made by his erstwhile owner was genuine and bona fide or not. The proviso and the notice contemplated under it was never intended to be permanent clog on the rights of the purchaser. The proviso and the notice contemplated under it was never intended to be permanent clog on the rights of the purchaser. The period contemplated for not initiating the eviction against the tenant on the ground as specified in clause (a) of sub-section (1) of Section 21 of the Act was intended to be for a period of three years and in no case for more than three years and six months. Any proceedings initiated for release of building under occupation of tenant on the aforesaid ground after the period contemplated under the aforesaid proviso does not require the service of the aforesaid notice of six months." 8. The two judgments being in conflict, the matter was referred to a larger Bench of the Supreme Court and in the case of Nirbhai Kumar (supra) the reference was answered in the following terms:- "4. Section 21 (1) of the Act so far as relevant reads as follows: "21. Proceedings for release of building under occupation of tenant.--(1) The prescribed authority may, on an application of the landlord in that behalf, order eviction of a tenant from the building under tenancy or any of the following grounds exist, namely- (a)-(b) x x x x x 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." 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. 5. 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. 5. Above being the position the decision in Martin & Harris Ltd. case expressed the correct view. Unfortunately, the said decision not appear to have been placed before the Bench which heard Anwar Hasan Khan." 9. In terms of the law as laid down in the case of Martin & Harris (supra) which was subsequently affirmed in the case of Nirbhai Kumar (supra), the bar under the first proviso to Section 21(1)(a) requiring the landlord to file an application for eviction after expiry of six months from the date of issuance of notice to the tenant, has been held to be a mandatory provision which gives a protection by way of locus poenitentiae to the tenant which he can avail or not. The provision which obviously has been enacted for the benefit and protection of the tenant was held to provide a breathing time given to the tenant which was personal in nature and no public interest being involved therein such beneficial provision could be waived by the tenant. 10. In the case at hand a specific objection had been taken by the petitioner in his memo of appeal that the mandatory requirement of six months' notice under the first proviso to Section 21 had not been complied with, therefore, it could not be said that the requirement of mandatory notice of six months had been waived by the petitioner tenant, and accordingly in view of the law laid down in the case of Martin & Harris and also in the case of Nirbhai Kumar, the finding returned by the Appellate Authority that the requirement of giving six months' notice was not there, stands vitiated. 11. Sri Suresh Chandra Tripathi and Sri Dharmendra Kumar Tripathi, learned counsel appearing for the respondents have not disputed the proposition of law with regard to the mandatory requirement of six months' notice as laid down in the case of Martin & Harris and subsequently affirmed in the case of Nirbhai Kumar. 12. 11. Sri Suresh Chandra Tripathi and Sri Dharmendra Kumar Tripathi, learned counsel appearing for the respondents have not disputed the proposition of law with regard to the mandatory requirement of six months' notice as laid down in the case of Martin & Harris and subsequently affirmed in the case of Nirbhai Kumar. 12. Counsel for the parties jointly agree that the matter may be remitted to the Appellate Authority for a decision afresh on the point of validity of notice and all other grounds which may be taken. 13. Having regard to the facts of the case the order dated 18.03.2019 passed by the Appellate Authority in Rent Appeal No.05 of 2014 is set aside and matter is remitted for a fresh decision in the light of the observations made above. 14. The parties are directed to appear before the Appellate Authority and it is expected that the Appellate Authority would endeavour to conclude the proceedings expeditiously in accordance with law. 15. The writ petition is allowed to the extent indicated herein above.