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2019 DIGILAW 825 (ALL)

Mukhtar Begum v. Abdul Gaffar

2019-04-02

MANOJ KUMAR GUPTA

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JUDGMENT : MANOJ KUMAR GUPTA, J. 1. These petitions by Mukhtar Begum are directed against three judgments all dated 4.12.2013 passed by Additional District Judge, Court No.16, Kanpur Nagar in separate rent appeals filed by the respondent-tenants under Section 22 of U.P. Act No.13 of 1972 (for short 'the Act'). Thereby, the appeals have been allowed and three separate judgments of Prescribed Authority dated 7.3.2011 have been set aside. The building involved in all three cases is same bearing no.105/209-A Chamanganj, Kanpur Nagar. The respondents are tenants of different portions of the said building (hereinafter referred to as 'the disputed building'). In Rent Case No.50 of 2006 Abdul Gaffar respondent is tenant of ground floor comprising of four rooms, one store, kitchen, latrine, bathroom and courtyard (giving rise to Writ-A No.14826 of 2014). In Rent Case No.73 of 2004, Smt. Shakeela Begum-respondent no.1 is tenant of two rooms, kothari, verandah, courtyard, latrine and bathroom on the first floor (giving rise to Writ-A No.14822 of 2014). In Rent Case No.74 of 2004, the respondent Mohd. Shakeel is tenant of a kothari on ground floor (giving rise to Writ-A No.14823 of 2014). In Writ -A No.14823 of 2014, despite service of summons on respondent being held sufficient by order dated 12.1.2015, no one has appeared on behalf of the respondent-tenant, whereas in other petitions, the tenants are duly represented. 2. I have heard learned counsel for the petitioner Sri Atul Dayal assisted by Sri Manish Tandon, Sri Gulrez Khan on behalf of tenant in Writ-A No.14826 of 2014 and Sri J.P. Singh on behalf of tenant in Writ-A No.14822 of 2014. With their consent, all the writ petitions were heard together and are being decided by this common judgment. Writ-A No.14826 of 2014 is treated to be leading case and the facts narrated in the body of the judgment are in context of the pleadings made in the said case. 3. The release application was filed by the petitioner-landlady registered as Rent Case No.50 of 2006 alleging that her family comprises of self, her husband Fareed Ahmad, four sons Jiya Alam, Fakhrey Alam, Shah Alam and Mansoor Alam and daughter Km. Farkhanda Anjum. They are living in a tenanted accommodation bearing building no.105/176, Chamanganj, Kanpur Nagar comprising of one room, varandah, court yard, latrine and bathroom. She also has two married daughters Smt. Kahkashan Anjum and Darankhasan Anjum. Farkhanda Anjum. They are living in a tenanted accommodation bearing building no.105/176, Chamanganj, Kanpur Nagar comprising of one room, varandah, court yard, latrine and bathroom. She also has two married daughters Smt. Kahkashan Anjum and Darankhasan Anjum. Her another daughter Smt. Rakshhanda Anjum had died leaving behind a son Mohd. Jaid Siddiqui. The residential accommodation in the tenanted premises is wholly insufficient to meet the need of residence of such a large family. She is unable to perform marriage of her sons because of paucity of residential accommodation. Her two sons Jiya Alam and Fakhrey Alam are building contractors, whereas Shah Alam and Mansoor Alam are engaged in business of silk yarn. The married daughters of the applicant and other relatives visit her during festivals and other occasions. The applicant thus requires at least five rooms, one for herself and her husband and one each for her four sons, a guest room, a drawing room, atleast two store rooms, latrine, bathroom and kitchen. She has purchased a part of house no.11/32 Gwal Toli, Kanpur Nagar measuring 85 sq. yards by registered sale deed dated 25.6.2003, in which there is only one khaparail shed room which too is in damaged condition. Another part of the same house was purchased by her daughter Km. Farkhanda Anjum by sale deed dated 25.11.2003 measuring 35 sq. yards, having only one room which is occupied by tenant Nizam Khan. The son of the applicant Fakre Alam had purchased another part of the same house measuring 59 sq. yards by two sale deeds dated 25.11.2003 comprising of two rooms, which are occupied by tenants Sulochan Singh and Chhanga Devi. As such, no part of the said house is available in vacant state to the applicant. By means of an amendment, a plea was also introduced in the release application to the effect that the applicant had executed a Hiba of the portion of house no.11/32 Gwal Toli, Kanpur Nagar owned by her in favour of her son-in-law Haseeb Ahmad on 15.3.2006 and thus, ceased to be owner of the said house. The disputed premises is most suited to the need of the applicant and her family, therefore, it be released in her favour. 4. The respondent-tenant contested the release application by filing written statement dated 23.4.2009. He alleged that he had been tenant for last 50 years. The disputed premises is most suited to the need of the applicant and her family, therefore, it be released in her favour. 4. The respondent-tenant contested the release application by filing written statement dated 23.4.2009. He alleged that he had been tenant for last 50 years. The petitioner purchased the building from its erstwhile owner Smt. Razia Begum about 5-6 years back knowing that it is in possession of old tenants. The rent of the disputed premises was got enhanced from Rs.50/-to Rs.100/-. The landlady refused to accept rent, consequently, the same is being deposited in Misc. Case No.318/70 of 2002 under Section 30 (1) of the Act. The petitioner is comfortably residing in the tenanted premises no.105/176 Chamanganj, Kanpur Nagar. She has given wrong details of her family members. The husband of the landlady had already died and Shah Alam is permanently employed in Saudi Arabia. Consequently, the family of the landlady comprises of only five persons and not seven persons, as alleged in the release application. The landlady got vacated second floor of the building from Masood Ahmad but instead of occupying the same, it was let out to one Achhey. The accommodation on the second floor consists of one room, verandah, court yard and other amenities. In case the need of the landlady was bonafide, she would not have let out the second floor after it came in her possession. It was also alleged that in premise no.11/32 Gwal Toli, Kanpur Nagar, there are five rooms in possession of the landlady. It was denied that the said premises was in possession of tenants. The alleged Hiba in favour of son-in-law is a collusive device so that she is able to succeed in the proceedings filed before the Prescribed Authority. It was also alleged that on second floor of the disputed building, the landlady had constructed two big rooms besides other amenities and thus, she has in her possession three rooms besides other amenities in addition to the rented accommodation in premises no.105/176 Chamanganj, Kanpur Nagar. 5. The Prescribed Authority by judgment dated 7.3.2011 allowed the release application after returning the following findings:- (a) There exists relationship of landlord and tenant between the parties. (b) There is no bar under law for simultaneously prosecuting release application under Section 21 (1) (a) and under Section 21 (1) (b) of the Act. 5. The Prescribed Authority by judgment dated 7.3.2011 allowed the release application after returning the following findings:- (a) There exists relationship of landlord and tenant between the parties. (b) There is no bar under law for simultaneously prosecuting release application under Section 21 (1) (a) and under Section 21 (1) (b) of the Act. (c) The tenanted accommodation in possession of the landlady cannot be taken into consideration while adjudging her bonafide need for the premises in dispute in view of the judgments in - (1)Sardar Jaswant Singh Vs. IVth Additional District Judge, Kanpur Nagar, 1995 (2) ARC 8 (2)Hari Shanker Vs. IVth Additional District Judge, 1995 (2) ARC 11 (3)Rasheed Hasan Vs. Vth Additional District Judge, Bijnor, 1996 (1) ARC 339, (4)Kuldeep Chandra Bohra Vs. Xth Additional District Judge, Kanpur Nagar, 1996 (1) ARC 56 (5)Satish Chandra Vs. Hari Raj Saran Agrawal, 2009 (2) ARC 731 and (6)Sarwari Begum Vs. VIIth Additional District Judge, 2004 (2) ARC 99 (d) As regards House No.11/32, it was held, placing reliance on judgment of this Court in Smt. Shila Sabbarwal Vs. IInd Additional District Judge, Allahabad, 1998 (2) ARC 119 that court cannot compel the landlord and members of his family to live in separate houses. It was also held that as per recital in the sale deed, house no.11/32, was in possession of tenant Nizam Khan. (e) The respondent-tenant has failed to prove that the landlady had let out any part of the disputed building to Achhey during pendency of the release application. It was also held that the accommodation on second floor vacated by tenant Maqsood Alam is not sufficient, having regard to the strength of family members of the landlady. (f) The comparative hardship has been held to be in favour of the landlady. It has been observed that despite pendency of release application since last five years, the tenant had not made any effort to search out alternative accommodation. 6. Aggrieved by the judgment of the Prescribed Authority, the respondent-tenant filed appeal under Section 22 of the Act. During pendency of the appeal, the respondent-tenant filed an application for amendment in the written statement seeking to introduce a plea to the effect that after purchase of the premises in dispute, the landlady had not given any notice under the proviso to Section 21 (1) (a) of the Act, therefore, the release application is legally not maintainable. During pendency of the appeal, the respondent-tenant filed an application for amendment in the written statement seeking to introduce a plea to the effect that after purchase of the premises in dispute, the landlady had not given any notice under the proviso to Section 21 (1) (a) of the Act, therefore, the release application is legally not maintainable. The amendment application was rejected by the appellate court by order dated 17.11.2012. Aggrieved thereby, the respondent-tenant filed Writ-A No.22549 of 2013 before this Court. This Court by order dated 24.4.2013, upheld the order rejecting the amendment application and dismissed the writ petition, but left it open to the tenant to raise objection with regard to validity of the proceedings on the ground of want of six months' notice under proviso to Section 21 (1) (a) of the Act during the course of argument. Thereafter, the appeal was taken up for consideration and has been allowed by impugned judgment dated 4.12.2013. The appellate court has held as follows:- (a) The release application was not maintainable, as six months notice contemplated under proviso to Section 21 (1) of the Act was not given before filing of the release application. The respondent-tenant could not raise the plea regarding the same in his written statement in view of the law prevailing at the relevant time. However, after the legal position stood crystallized by the Larger Bench judgment of the Supreme Court in Nirbhai Kumar Vs. Maya Devi and others, (2009) 5 SCC 399 , the respondent-tenant duly took the plea regarding want of notice by seeking amendment in the written statement at the appellate stage. He has been permitted to raise the said plea by this Court during course of hearing of the appeal. Thus, the tenant had not waived the said plea. (b) The relationship of landlord and tenant between the parties stand duly established. (c) There is no evidence to prove that at the time of filing of the release application, the husband of the landlady was alive, but died subsequently. The release application was filed by wrongly showing him as member of the family. Farkhanda Anjum daughter of the landlady has got married during pendency of the proceedings. (d) The need of the landlady for the disputed premises cannot be held to be bonafide on the ground that all members of the family want to live together. The release application was filed by wrongly showing him as member of the family. Farkhanda Anjum daughter of the landlady has got married during pendency of the proceedings. (d) The need of the landlady for the disputed premises cannot be held to be bonafide on the ground that all members of the family want to live together. (e) The landlady got possession of second floor of the disputed building. The said portion was subsequently let out to tenant Achhey. (f) The landlady has covered the open roof of second floor of the disputed building. On third floor, the photographs reveal, there is a wall with a window which could definitely not be a bathroom and latrine as claimed by the landlady. It could only be a room. (g) By sale deed dated 25.11.2003, the landlady had purchased 85 sq. yards of building no.11/32 Gwal Toli, Kanpur Nagar comprising of a room measuring 6” x 8”. The other part of the said building has been purchased by son and daughter of the landlady. The landlady could satisfy the need from building no.11/32. (h) Farkhanda Anjum and Fakhrey Alam, daughter and son of the landlady, have been shown as family members of the landlady in the release application, consequently, the portion purchased by them could be used by the landlady. The alleged Hiba of the portion purchased by the landlady in favour of her son-in-law is not valid, as it was executed in lieu of loan allegedly taken by the landlady from her son-in-law. The alleged need is consequently not bonafide. 7. Sri Atul Dayal, learned counsel for the petitioner assisted by Sri Manish Tandon submitted that:- (a) The respondent-tenant having not raised any grievance regarding non issuance of six months' notice contemplated under proviso to Section 21 (1) of the Act in the written statement or even at the stage of final arguments before the Prescribed Authority, had thereby waived the notice. The mere fact that this Court permitted the respondent-tenant to raise the plea at the stage of final arguments in appeal would not mean that the waiver of the notice had been condoned by this Court. The mere fact that this Court permitted the respondent-tenant to raise the plea at the stage of final arguments in appeal would not mean that the waiver of the notice had been condoned by this Court. He further submitted that change in legal position because of judgment of the Supreme Court would not entitle the respondent-tenant to claim that such plea could not have been raised until the pronouncement of judgment by the Supreme Court in Nirbhai Kumar (supra), as the legal provision remained unchanged. (b) The finding of the appellate court that the petitioner had wrongly shown her husband as member of her family at the time of filing of the release application, is wholly perverse inasmuch as he was alive at the time of filing of the release application. He died subsequently on 30.11.2007, as evident from his death certificate (Annexure-4). (c) The view taken by the appellate court that it is not necessary for family members of the landlady to live together in one house, is wholly illegal. It is well settled that in proceedings for release of a premises under Section 21 (1) (a) on ground of bonafide need, the courts cannot act as rationing authority nor can compel the landlord to satisfy his/her need in the manner in which court considers more appropriate. After release of second floor of the disputed building, it was not let out to any person nor to Achhey. The plea taken in this regard was categorically refuted by filing affidavit of Fakhrey Alam (son) in rebuttal. The RCI report on which reliance has been placed, is a procured one and the same was submitted by the RCI not in the instant proceedings. It is inadmissible in evidence. The appellate court wrongly interfered with the finding of the trial court that the second floor accommodation was not let out to tenant Achhey or to any one else. (d) It was specifically stated in the affidavit of Fakhrey Alam (son) that after obtaining possession of second floor, the open courtyard has been covered and one bathroom, water tank were constructed on the third floor. The appellate court has recorded findings to the contrary, on pure conjectures and surmises. (d) It was specifically stated in the affidavit of Fakhrey Alam (son) that after obtaining possession of second floor, the open courtyard has been covered and one bathroom, water tank were constructed on the third floor. The appellate court has recorded findings to the contrary, on pure conjectures and surmises. (e) The finding recorded by the appellate court that building no.11/32 Gwal Toli could be used by the landlady, is illegal and perverse and rendered in ignorance of the fact that no part of it is vacant and also that the same no more belongs to the landlady. (f) The appellate court erred in doubting the validity of the Hiba as it is beyond the power of appellate court to go into the said issue. 8. On the other hand, learned counsel for the respondent-tenant Sri Gulrez Khan and Sri J.P. Singh submitted that the appellate court rightly held that:- (a) The release application is barred by proviso to Section 21 (a) of the Act. (b) There has been no waiver of the right conferred by the said provision. (c) The finding recorded by the appellate court that the second floor of building no.105/209-A was let out to Achhey is based on admissible evidence on record. (d) The finding that new constructions had been raised by the landlady on the second and third floor of the disputed building is also based on evidence on record. (e) The finding that house no.11/32 Gwal Toli is available to the landlady is also perfectly valid. (f) That Hiba in favour of son-in-law was rightly held to be wholly malafide and prepared for purposes of the instant case. 9. I have considered the submissions advanced by learned counsel for the parties and gone through the entire record. 10. The principal issue which falls for determination is whether release application under Section 21 (1) (a) has been rightly held to be not maintainable for want of six months notice under the first proviso to sub-section (1) of Section 21 of the Act. The relevant part of Section 21 (1) of the Act and the first proviso thereto is as follows:- “21. The relevant part of Section 21 (1) of the Act and the first proviso thereto is as follows:- “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 ; 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.” 11. A bare perusal of the first proviso reveals that it prescribes twin conditions to be fulfilled by a purchaser landlord of tenanted building before he could maintain a release application on ground of his bonafide need under clause (a). The first condition being that a period of three years should have elapsed since the date of purchase and second, that the landlord has given notice to the tenant not less than six months before filing of the release application. The notice could be given even before expiration of the period of three years. 12. A learned Single Judge of this Court in Abdul Jabbar Vs. VIIth Additional District Judge and others, 1989 (15) ALR 50 has very lucidly explained the object of the notice thus:- “........ 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. VIIth Additional District Judge and others, 1989 (15) ALR 50 has very lucidly explained the object of the notice thus:- “........ 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 act 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....” 13. A two Judge Bench of the Supreme Court in Martin & Harris Ltd. Vs. VIth Additional District Judge and others, 1998 (1) ARC 109 held that the embargo placed by the first proviso upon the purchaser landlord from filing release application within three years of purchase is mandatory, but the said provision being for personal benefit of tenant with no public policy involved in it, could be waived by him. The relevant observations made in this regard are as follows:- “...The grounds 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....” 14. In coming to the above conclusion, the Supreme Court placed reliance upon a previous decision of that Court in the case of Krishan Lal Vs. This type of protection to the tenant would naturally be personal to him and could be waived....” 14. In coming to the above conclusion, the Supreme Court placed reliance upon a previous decision of that Court in the case of Krishan Lal Vs. State of J & K, (1994) 4 SCC 422 , wherein Hansaria, J. speaking for the Bench made the following observations:- "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 on 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 Code of Civil Procedure is mandatory, which was the view taken in Bhagchand Dagadusa v. Secretary of State for India in Council 54 IA 336 it was held that even if a notice under Section 80 be defective, the same would next 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). This point had come up for examination by this Court in Dhirendra Nath Goral v. Shudhir Chandra Ghosh AIR 1964 SC 1300 : (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. This Court referred to what was stated in this regard by Mookherjee, J. In Ashutosh Sikdar v. Behari Lal Kirtania ILR 35 Cal. 61 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 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." 15. The controversy before the Supreme Court arose in the context of undisputed factual position that the tenanted property was transferred by the erstwhile owner on 30.6.1985 followed by notice dated 20th September 1985 by the purchaser landlord and filing of release application under Section 21 (1) (a) on 24.1.1986. Consequently, three years had not elapsed on the date of filing of the release application. The tenant took plea regarding release application being premature in the written statement filed by him. Later on, he joined issues on merits by filing his evidence. The Prescribed Authority decided the release application on merits by judgment dated 23.5.1990 and allowed the same. In the above backdrop, the Supreme Court after laying down the law on waiver held that the tenant by his conduct had waived the contention about the application being pre-mature. He is also estopped from taking the plea, as on account of his conduct, the landlord had irretrievably changed his position to his detriment and lost the opportunity of seeking leave of the Court to withdraw the release application with liberty to file after the bar is lifted. The law laid down in this regard in the concluding part of the judgment in Martin and Harris is as follows:- “18. 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. The law laid down in this regard in the concluding part of the judgment in Martin and Harris is as follows:- “18. 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 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 notice. 19. Apart from waiver the appellant was stopped from taking up such a contention as the respondent, on account of the aforesaid contention of the appellant, had irretrievably changed his position to his detriment and lost an opportunity of seeking leave of the Court to withdraw the suit with liberty to file a fresh suit, as seen earlier. The second point for consideration is, therefore, answered in the negative, in favour of the respondent-landlord and against the appellant.” 16. In Anwar Hasan Khan Vs. Mohd. Shafi and others, (2001) 8 SCC 540 , a two Judges Bench of the Supreme Court considered a slightly different issue as to whether six months' notice contemplated under the first proviso to sub-section (1) of Section 21 had to be given even after expiry of period of three years and six months. In the fact of that case, the shop in dispute was purchased from the previous landlord on 2.8.1979. In the fact of that case, the shop in dispute was purchased from the previous landlord on 2.8.1979. The father of the appellant and after his father's death, the appellant attorned in favour of the purchaser landlord. The purchaser landlord issued a notice to the appellant on 6.2.1995 calling upon him to pay arrears of rent followed by an application for release of the shop under Section 21 (1) (a) of the Act. The release application was resisted on the ground that it was not maintainable for want of six months' notice required as per first proviso to Section 21 (1) of the Act. It is noteworthy that the plea of want of notice was also duly pressed and there was no issue before the Supreme Court regarding waiver of the notice. The case of the purchaser landlord was that after expiry of three years six months, no notice is required to be given. The plea taken by the landlord was upheld observing thus:- “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 malafide, a statutory bar was created vide 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. 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 scale made by his erstwhile owner was a genuine and bonafide or not. 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 aforesaid notice of six months.” 17. Subsequently, a Bench of two Hon'ble Judges of the Supreme Court was of the opinion that the judgment in Anwar Hasan Khan is in conflict with the previous decision in Martin & Harris, Consequently, the matter was referred to a Larger Bench. The Larger Bench in Nirbhai Kumar Vs. Maya Devi (supra) held that Martin & Harris expressed the correct view, but unfortunately not placed before the Bench which decided Anwar Hasan Khan's case and concluded by holding thus:- “4. 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 does not appear to have been placed before the Bench which heard Anwar Hasan Khan case.” 18. Accordingly, the law on the subject, deducible from the judgments of the Supreme Court, would be as follows:- (a) The requirement of giving six months' notice under first proviso to Section 21 (1) is mandatory, as laid down in Martin & Harris, duly approved by Larger Bench in Nirbhai Kumar. (b) The proviso prescribes a moratorium of three years from date of purchase disentitling the purchaser landlord from filing release application during this period. (c) Six months' notice could be given either before or after three years period. (d) The giving of six months' notice would hold good even after expiry of three years, as view to the contrary laid down in Anwar Hasan Khan case has been specifically overruled. (e) The moratorium of three years and requirement of giving six months' notice is for personal benefit of the tenant and no public policy is involved therein, consequently, these benefits could be waived by the tenant. (f) The waiver could be inferred from want of objection in that regard in the written statement filed in reply to the release application or where plea is taken but subsequently, the tenant joins issues on merits and does not press for rejection of release application at the threshold. (g) If the plea is not taken or even if taken but not pressed in the beginning, it would result in the landlord changing his position irretrievably to his detriment, attracting the doctrine of estoppel, disentitling the tenant to raise such plea at subsequent stages of the proceedings. 19. In the instant case, concededly, the plea relating to want of six months' notice under proviso to Section 21 (1) of the Act was not taken in the written statement. The respondent-tenant joined the issues on merits. Even at the stage of hearing before the Prescribed Authority, he did not raise any such plea. 19. In the instant case, concededly, the plea relating to want of six months' notice under proviso to Section 21 (1) of the Act was not taken in the written statement. The respondent-tenant joined the issues on merits. Even at the stage of hearing before the Prescribed Authority, he did not raise any such plea. It was sought to be raised for the first time in appeal by seeking amendment, but the amendment application was rejected by the appellate court. The respondent-tenant challenged the said order by filing a writ petition, but which too was dismissed. However, it was left open to him to raise the plea during the course of argument in appeal by observing thus:- “In such view of the matter, the impugned order rejecting the amendment application does not require interference by this Court and the writ petition, accordingly, stands dismissed. However, it shall be open to the parties to raise objection with respect to the validity of the proceedings itself for want of six months' notice as provided by proviso to Section 21(1)(a) of the Act during the course of argument and there is no reason to believe that the appellate court shall not consider and adjudicate upon the same in accordance with law.” 20. The liberty to raise the plea during the course of arguments was given without this Court expressing any opinion on the law laid down in this regard by various judgments of the Supreme Court. The High Court never meant that thereby it had ruled that the plea of waiver could not be pressed by the landlady in defence, irrespective of whether waiver had taken place or not. The appellate court has completely misunderstood the observations made by this Court while requiring it to decide the plea if raised during the course of arguments. Then again, a statutory provision and the consequences which flows from it, has to be decided as per the interpretation given to the provision on the date the decision is being given. Moreover, the appellate court has ignored from consideration the fact that on the date written statement was filed, the law laid down by the Coordinate Bench of Supreme Court in Martin and Harris, that six months' notice, though mandatory, could be waived by the respondent-tenant was also holding the field. Moreover, the appellate court has ignored from consideration the fact that on the date written statement was filed, the law laid down by the Coordinate Bench of Supreme Court in Martin and Harris, that six months' notice, though mandatory, could be waived by the respondent-tenant was also holding the field. Further, the judgment in Anwar Hasan Khan, was overruled by the Larger Bench in Nirbhai Kumar on 24.3.2009. The release application was decided on 7.3.2011 almost two years after the decision of Supreme Court in Nirbhai Kumar. Even if the explanation furnished by the respondent-tenant that he could not raise the plea at the time of filing of the written statement in view of law prevailing at that time, is accepted, he could have raised the plea immediately after judgment in Nirbhai Kumar. But even during two years thereafter when the matter remained pending before the Prescribed Authority, no such plea was raised. It clearly makes out a case of waiver. Apart from it, the doctrine of estoppel would also prevent the respondent-tenant from seeking rejection of release application on ground of technical defect relating to want of notice, as the landlord lost the opportunity to withdraw the release application and file a fresh one after serving the notice. 21. A great emphasis has been placed by learned counsel for the respondent-tenant upon decision of this Court in Brij Nandan Gupta Vs. IIIrd A.D.J. Rampur and another, 2012 (94) ALR 593. In that case, the appellate court had allowed the appeal filed by the tenant holding that notice under proviso to Section 21 (1) was not served upon the tenant. This Court dismissed the writ petition finding no infirmity in the view taken by the appellate court. The plea regarding non-service of notice was specifically taken before the Prescribed Authority. However, the Prescribed Authority decided the issue regarding service of notice against the tenant. In appeal, as noted above, the finding was reversed by the appellate court and it was held that there was no reliable evidence to prove service of notice upon the tenant. It was not a case where notice under the proviso to Section 21 (1) was not given nor a case where there was no plea that release application should be dismissed as not maintainable, as no notice contemplated under first proviso to Section 21 (1) was served. 22. It was not a case where notice under the proviso to Section 21 (1) was not given nor a case where there was no plea that release application should be dismissed as not maintainable, as no notice contemplated under first proviso to Section 21 (1) was served. 22. The next aspect which arises for consideration is regarding bonafide need of the landlady. Indisputably, she is living in a tenanted house bearing no.105/176 Chamanganj, Kanpur Nagar. The accommodation in her possession in the tenanted premises, as per para 2 of the release application, consisted of one room, verandah, courtyard, latrine and bathroom. There is no dispute regarding the same, as paragraph 2 of the release application stands admitted vide paragraph 2 of the written statement. The family of the landlady, as per paragraph 3 of the release application, consisted of the following members:- “(a) self aged about 58 years (b) Fareed Ahmad husband aged about 63 years (c) Jiya Alam aged about 38 years (d) Fakhrey Alam son aged about 33 years (e) Shah Alam son aged about 31 years (f) Mansoor Alam son aged about 29 years (g) Km. Farkhanda Anjum aged about 25 years” 23. It is also the specific case of the landlady that she has two married daughters namely Kahkashan Anjum and Darankhasan Anjum and grandson Mohd. Jaid Siddiqui, son of deceased married daughter Smt. Rakshhanda Anjum. Her two sons are building contractors while two others are dealing in business of silk yarn. They were of marriageable age. During pendency of the proceedings, indisputably Jiya Alam, the eldest son got married with Smt. Tarana Khanam and they have two children. Again on 13.9.2011, son Shah Alam also got married and he has a baby girl Wania. He is allegedly living in a tenanted accommodation House No.105/159 Chamanganj, Kanpur Nagar, for want of adequate residential accommodation of his own. The married daughters of the landlady and other relatives visit her on festivals and other occasions. She requires five bed rooms, one for herself and one each for her four sons. She also requires a drawing room, a guest room, at least two store rooms, latrine, bathroom and kitchen. The accommodation in her possession in the tenanted premises is wholly insufficient to meet her residential requirement. 24. She requires five bed rooms, one for herself and one each for her four sons. She also requires a drawing room, a guest room, at least two store rooms, latrine, bathroom and kitchen. The accommodation in her possession in the tenanted premises is wholly insufficient to meet her residential requirement. 24. It is now well settled by a catena of judgments of this Court that where the landlord himself is living in a tenanted accommodation, his need to occupy his own house cannot be doubted. The tenanted accommodation in his possession cannot be treated to be a suitable alternative accommodation in his possession so as to negate his claim of bonafide need. The trial court had referred to a large number of judgments on the above legal proposition, therefore, I refrain from burdening the judgment by quoting all the precedents on the point except one, in the case of Sardar Jaswant Singh Vs. IVth Additional District Judge, Kanpur Nagar and others, 1995 (2) ARC 8 , wherein it has been observed thus:- “5. In my opinion, a person has a right to live in his own house and he cannot be compelled to live in a tenanted house. Whenever an application under Section 21 (1) (a) of the Act is filed and it is found that the landlord is himself living in a tenanted house then, in my opinion, ordinarily such application should be allowed because no landlord should be compelled to live in a tenanted house if he has his own house where he wants to shift. The need of the landlord in such cases should be held to be genuine.” 25. The appellate court has observed that the landlady had wrongly shown her husband as member of her family in the release application, although he was not alive. The release application, as noted above, was filed on 26.8.2006. The respondent-tenant in his written statement alleged that the husband of the landlady had died without disclosing the date of his death. The written statement was filed on 23.4.2009 almost two and half years after filing of the release application. The landlady in her affidavit filed on 23.9.2008 admitted about the death of her husband during pendency of the proceedings. She also disclosed the date of his death as 30.11.2007. The written statement was filed on 23.4.2009 almost two and half years after filing of the release application. The landlady in her affidavit filed on 23.9.2008 admitted about the death of her husband during pendency of the proceedings. She also disclosed the date of his death as 30.11.2007. The death certificate has been brought on record as Annexure-4, wherein the same date is recorded as date of death of her husband. The respondent-tenant had filed several affidavits after 23.9.2008 but in which the date of death disclosed in paragraph 7 of the affidavit of the landlady dated 23.9.2008 has not been disputed, therefore, the observation made by the appellate court that the landlady had made an incorrect disclosure in paragraph 3 of the release application is wholly perverse and against the record. 26. No doubt, during pendency of the proceedings, the husband of the landlady died and her daughter Km. Farkhanda Anjum also got married. But on the other hand, Jiya Alam, the eldest son of the landlady got married to Smt. Tarana Khanam on 10.12.2009 and two children were born to them. It is also not disputed before this Court that during pendency of the appeal, the other son Shah Alam also got married on 13.9.2011, though he is alleged to be settled in Saudi Arabia but the landlady took a specific stand in her affidavit that he had gone to Saudi Arabia on a temporary work permit only. It is stated in the writ petition that after his marriage he is compelled to take another tenanted premises No.105/159 Chamanganj, Kanpur Nagar. There is no evidence on record to prove that he is settled in Saudi Arabia. In any case, even if the alleged need of Shah Alam is ignored from consideration, the strength of family members of the landlady remained same as it was at the time of filing of the release application with the marriage of eldest son Jiya Alam and two children being born to him. 27. The need set up by the landlady in the release application that she would require one bedroom for herself and one each for her sons cannot be doubted. Likewise, the need to have a drawing room, guest room, store, kitchen and other amenities also could not be doubted. 27. The need set up by the landlady in the release application that she would require one bedroom for herself and one each for her sons cannot be doubted. Likewise, the need to have a drawing room, guest room, store, kitchen and other amenities also could not be doubted. The appellate court in its judgment has not specifically set aside the finding of the Prescribed Authority recorded in respect of the bonafide need of the landlady except in respect of drawing room by observing that the landlady does not appear to be holding a very high status in the society, as she claims to have taken loan from her son-in-law for purchasing property no.11/32 Gwal Toli. The approach of the appellate court is manifestly illegal. The need for having a drawing room could not be negated on the above ground, as judicial notice could be taken of the fact that in present day style of living, having a drawing room is a necessity and not luxury. The appellate court had completely lost sight of the fact that the landlady has two married daughters and son of a deceased daughter and other relatives and friends who visit her on festivals and other occasions. To have a drawing room for the visitors would thus be a necessity. 28. The main ground on which the appellate court has held that the need of the landlady is not bonafide is that second floor of the disputed building was let out by the landlady to one Achhey after getting its possession from the erstwhile tenant Maqsood. It has also taken note of the plea of the tenant that when the said plea was pressed by him, the landlady got the accommodation vacated from tenant Achhey. 29. For arriving at the above conclusion, the appellate court has placed reliance on affidavits of Parvej Alam and Mohd. Adnan (Paper No.53 and 54 respectively). The appellate court has observed that in rebuttal, the landlady filed affidavit of Fakhrey Alam, her son (Paper No.69) in which only the averments made in the affidavit of Abdul Gaffar (Paper No.52) have been rebutted but not the contents of the affidavits of his witnesses Parvej Alam and Mohd. Adnan. These affidavits have gone unrebutted. 30. The rebuttal affidavit of Fakhrey Alam is Paper No.69 and the same has been brought on record as Annexure-9. Adnan. These affidavits have gone unrebutted. 30. The rebuttal affidavit of Fakhrey Alam is Paper No.69 and the same has been brought on record as Annexure-9. A perusal thereof shows that in the said affidavit, in the beginning he replied to the contents of the affidavit of tenant Abdul Gaffar (Paper No.52) and from paragraph 9 onwards he gave reply to the affidavits of Parvej Alam (Paper No.53) and Mohd. Adnan (Paper No.54), witnesses of the respondent-tenant. The allegation that it was let out to Achhey was categorically refuted in paragraphs 4 and 11. Thus, the conclusion drawn by the appellate court that affidavits of witnesses Parvej Alam and Mohd. Adnan have not been rebutted, is wholly perverse and against the record. Consequently, the conclusion drawn by the appellate court from the affidavit of the witnesses of the respondent-tenant that the second floor was let out to Achhey and thus, the alleged need is not bonafide, could not be sustained, being based on complete misreading of the evidence on record. 31. The other document relied upon by the appellate court is Rent Control Inspector's report dated 28.10.2010. The said report was not given in the instant case but in some other proceeding pending before the Rent Control and Eviction Officer. The copy of the said report was filed in the instant proceedings. The landlady has taken a specific plea that the report in question was a collusive one and procured by the tenant for purposes of the instant case. The tenant did not make any effort to prove the correctness of the said report. Apart from it, the report mentions that the Rent Control Inspector was informed that Achhey had already vacated and that the landlady is in possession of the said premises. It also mentions that the second floor accommodation comprises of one room, verandah, open roof, latrine, kitchen and bathroom. Even Fakhrey Alam in his affidavit admitted the existence of same extent of accommodation on the second floor. 32. Thus, irrespective of whether second floor was let out to Achhey or not, the fact remains that the second floor of the building comprising of one room and other amenities, has come in possession of the landlady after it was vacated by the tenant. 32. Thus, irrespective of whether second floor was let out to Achhey or not, the fact remains that the second floor of the building comprising of one room and other amenities, has come in possession of the landlady after it was vacated by the tenant. The appellate court mechanically proceeded to reject the need of the landlady without examining whether the accommodation on second floor of the building would satisfy the need pleaded in the release application. 33. The appellate court has also observed that some new additions have been made by the landlord on the second floor and third floor. The specific case of the landlady was that only open roof on the second floor has been covered and one latrine, bathroom and water tank has been constructed on the third floor. The appellate court has entered a wholly conjectural finding while observing that the covered portion of open roof of second floor could be used as a room by the landlady. Likewise, again on pure conjectures, the appellate court has held that the wall constructed on the third floor has a ventilator, which is not put in bathroom and latrine, therefore, it appears that the construction on the third floor is a room, as alleged by the tenant. Such an approach by the appellate court is wholly illegal and fanciful. The appellate court instead of examining whether the additions made by the landlady would fulfill her alleged need, proceeded to record findings on pure conjectures. It has been repeatedly observed by this Court that while deciding bonafide need of the landlord, the courts cannot act as rationing authority nor could compel the landlord to satisfy the need in the manner in which the court considers it more appropriate. It has to be left to the wisdom of the landlord as to how he would satisfy his need once it has been found to be bonafide. In fact the Prescribed Authority has rightly observed that portion of the disputed building vacated by Maqsood Alam i.e. second floor of the building is not sufficient to meet the need set up in the release application. The appellate court has failed to examine the said aspect nor has set aside the finding recorded in this regard by the Prescribed Authority. 34. The appellate court has failed to examine the said aspect nor has set aside the finding recorded in this regard by the Prescribed Authority. 34. The other factor which weighed with the appellate court is acquisition of building no.11/32 Gwal Toli by the landlady by sale deed dated 25.6.2003. The specific case of the landlady was that the portion of the building purchased by her admeasures only 85 sq. yards. It comprises of one khaparail room in a completely dilapidated condition, unfit for residential use. The appellate court has also found that the portion purchased by the landlady consists of one room measuring 6” x 8” and the remaining area is open. Even if the alleged Hibanama executed by the landlady in favour of her son-in-law is ignored, there cannot be two opinions on the point that one room measuring 6” x 8” is wholly insufficient to meet the need of the landlady. According to the petitioner, the other parts purchased by her daughter and son by separate sale deeds are in possession of the old tenants. The appellate court has accepted the version of the landlady that the portion purchased by Fakhrey Alam is not vacant but in possession of old tenants. The Prescribed Authority has accepted the plea of the landlady that portion purchased by her daughter Km. Fakhranda Anjum is also in possession of tenant Nizam Khan. It has placed reliance on affidavit Paper No.29, ration card and electoral roll in which name of tenant Nizam Khan and members of his family is duly recorded in respect of the said building. The appellate court has not reversed the finding of the Prescribed Authority recorded in respect of the portion purchased by daughter Km. Fakhranda Anjum. 35. In Pratibha Devi Vs. T.V. Krishnan, 1996 (5) SCC 353 , the Supreme Court held that the landlord is the best judge of his requirement and the courts have no concern to dictate to the landlord as to how and in what manner he should live. Again in Raghvendra Kumar Vs. Prem Machinery and Co., 2000 (1) SCC 679 , the Supreme Court has held that it is the choice of the landlord to choose place for his business which is most suitable for him. The courts cannot compel him to do business from a place not of his choice. 36. In Sarla Ahuja Vs. Again in Raghvendra Kumar Vs. Prem Machinery and Co., 2000 (1) SCC 679 , the Supreme Court has held that it is the choice of the landlord to choose place for his business which is most suitable for him. The courts cannot compel him to do business from a place not of his choice. 36. In Sarla Ahuja Vs. United India Insurance Company Ltd., (1998) 8 SCC 119 , the Supreme Court has held that while deciding the question of bonafide need of the landlord, it is not for the court to find out as to how else he can adjust himself without getting possession of the tenanted premises. The relevant observations are as follows:- “The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.” 37. Having regard to the same, this Court is of the opinion that the judgment rendered by the appellate court, apart from being contrary to the settled legal position, is also otherwise wholly perverse and based on a completely wrong approach and thus cannot be sustained. In the result, the writ petitions are allowed. The judgments of the appellate court dated 4.12.2013 are set aside and that of the Prescribed Authority dated 7.3.2011 stand restored. In the result, the writ petitions are allowed. The judgments of the appellate court dated 4.12.2013 are set aside and that of the Prescribed Authority dated 7.3.2011 stand restored. The respondent- tenant in each case is granted three months time to vacate subject to furnishing of an undertaking before the Prescribed Authority within three weeks from today that vacant possession of the premises would be handed over to the landlady without any let or hindrance and that no third party shall be inducted in the meanwhile. In case of default of any of the above conditions, it shall be open to the landlady to forthwith execute the release order passed by the Prescribed Authority in accordance with law.