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2019 DIGILAW 996 (ALL)

Anoop Kumar v. Doongermal Singodiya

2019-04-19

YOGENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : YOGENDRA KUMAR SRIVASTAVA, J. 1. Heard Sri Kshitij Shailendra, learned counsel for the petitioners and Sri Lalit Kumar, learned counsel for the respondents. 2. The present petition seeks to challenge the order dated 15.9.2010 passed by the District Judge, Moradabad in Rent Control Appeal No. 27 of 2006 (Doongermal Singodiya Vs. Anoop Kumar and others) whereby the order dated 16.10.2006 passed by the Prescribed Authority/Civil Judge (Senior Division) Chandausi, Moradabad in P.A. Case No. 2/02 (Rameshwar Prasad Agarwal Vs. Doongermal Singodiya) under Section 21 (1) (a) of U.P. Act No. 13 of 1972 (The Act, 1972) by which the release application of the petitioner-landlord had been allowed and the respondent-tenant was ordered to vacate the disputed shop, has been set aside. 3. The principal ground on the basis of which the appeal has been allowed and the order passed by the Prescribed Authority was set aside is that the mandatory notice of six months in terms of first proviso to Section 21 (1) (a) was not given and therefore the release application was premature and the order passed by the Prescribed Authority in favour of the petitioner-landlord was unsustainable. 4. For ease of reference, the relevant statutory provision as contained under Section 21 of U.P. Act No.13 of 1972 is being extracted below:- "21. Proceeding for release of building under occupation of tenant. 4. For ease of reference, the relevant statutory provision as contained under Section 21 of U.P. Act No.13 of 1972 is being extracted below:- "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: ..................." 5. A plain reading of 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 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 Ltd. Vs. District Judge, (1998) 1 SCC 732 wherein it was held that the provision for six months' notice before initiation of proceedings under Section 21 (1) of the Act, 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. Subsequently in the case of Anwar Hasan Khan Vs. 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 Vs. Mohd.Shafi, (2001) 8 SCC 540 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 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 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 Vs. Maya Devi and others, (2009) 5 SCC 399 , 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) xxxx (b) xxxx 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. 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. Above being the position the decision in Martin & Harris Ltd.'s case (supra) expressed the correct view. Unfortunately, the said decision not appear to have been placed before the Bench which heard Anwar Hasan Khan's case (supra)." 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, 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. The question as to whether a mandatory requirement of a statute can be waived by the party concerned has been considered in a catena of judgments, which may gainfully be referred to. 11. In Vellayan Chettiar Vs. Govt. of the Province of Madras, (1947) AIR PC 197 it was held by the Privy Council that even though Section 80 C.P.C. is mandatory, still non-issuance of such notice would not render the suit bad in the eye of law because such non-issuance of notice can be waived by the party concerned. The protection provided under Section 80 was held to be 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. 12. The protection provided under Section 80 was held to be 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. 12. In the case of Dhirendra Nath Gorai and Subal Chandra Shaw and others Vs. Sudhir Chandra Ghosh and others, (1964) 6 SCR 1001 following the aforementioned judgment of the Privy Council in Vellayan Chettiar (supra), it was held in the context of Section 35 of the Bengal Money Lenders' Act that the said section although is mandatory in nature, was intended only for the benefit of the judgment-debtor and, therefore, he can waive the right conferred on him under the said section. The observations made in the judgment are as follows :- "7.........a mandatory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it. In the present case the executing court had inherent jurisdiction to sell the property. We have assumed that Section 35 of the Act is a mandatory provision. If so, the question is whether the said provision is conceived in the interests of the public or in the interests of the person affected by the non-observance of the provision. It is true that many provisions of the Act were conceived in the interests of the public, but the same cannot be said of Section 35 of the Act, which is really intended to protect the interests of a judgment-debtor and to see that a larger extent of his property than is necessary to discharge the debt is not sold. Many situations may be visualized when the judgment-debtor does not seek to take advantage of the benefit conferred on him under Section 35 of the Act; for instance, if the part of the property carved out by the court for sale is separated from the rest of his property, the value of the remaining property may be injuriously affected by the said carving out, in which case the judgment-debtor may prefer to have his entire property sold so that he may realize the real value of the property and pay part of the sale price towards the decretal amount. He cannot obviously be compelled to submit to the sale of a part of the property to his disadvantage. He cannot obviously be compelled to submit to the sale of a part of the property to his disadvantage. A provision intended for his benefit cannot be construed in such a way as to work to his detriment. But it is said that the proviso to Section 35 of the Act indicates a contrary intention. Under that proviso, "if the highest amount bid for the property so specified is less than the price so specified, the Court may sell such property for such amount, if the decree-holder consents in writing to forego so much of the amount decreed as is equal to the difference between the highest bid and the price so specified". This is only an option given to the decree-holder: he may exercise this option, if he does not like to go through the entire sale proceedings over again. In one contingency this proviso also works for the benefit of the judgment-debtor, for he will be relieved of part of his indebtedness. But anyhow this does not show that the main provision is not intended for the benefit of the judgment-debtor. We are, therefore, satisfied, on a true construction of Section 35 of the Act, that it is intended only for the benefit of the judgment-debtor and, therefore, he can waive the right conferred on him under Section 35 of the Act." 13. Reference may also be had to the judgment in the case of S.Raghbir Singh Gill Vs. S.Gurcharan Singh Tohra, (1980) Supp1 SCC 53 wherein the argument that the requirement of Section 94 of the Representation of the People Act, 1951 cannot be waived, was rejected holding that the privilege conferred or a right created by a statute, if it is solely for the benefit of an individual, he can waive it. It was also held that where a prohibition enacted is founded on public policy, courts should be slow to apply the doctrine of waiver but if such privilege granted under the Act is for the sole benefit of an individual, the person in whose benefit the privilege was enacted has a right to waive it because the very concept of privilege inheres a right to waiver. The observations made in this regard in the aforementioned judgment are as follows :- "24. The observations made in this regard in the aforementioned judgment are as follows :- "24. An apprehension was, however, voiced that the principle of secrecy enshrined in Section 94 of the Act having been enacted in public interest and it being a prohibition based on public policy, it cannot be waived. Reliance was placed on Basheshar Nath v. CIT, (1959) AIR SC 149 : 1959 Supp 1 SCR 528, 610 : 35 ITR 190] where the question whether the doctrine of waiver can be invoked when the constitutional or statutory guarantee of a right is not conceived in public interest or when it does not affect the jurisdiction of the authority infringing the said right, was examined. It was held that if the privilege conferred or the right created by the statute is solely for the benefit of the individual, he can waive it. It was, however, said that even in those cases the courts invariably administered a caution that having regard to the nature of the right some precautionary and stringent conditions should be applied before the doctrine is invoked or applied. In Bikram Khurshed Pesikaka v. State of Bombay, (1955) AIR SC 123 : (1955) 1 SCR 613 , 654 : 1955 SCJ 73 ] it was observed that fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. Undoubtedly, where a prohibition enacted is founded on public policy courts should be slow to apply the doctrine of waiver but this approach overlooks the fact that if a privilege was granted for the benefit of an individual, in the instant case for the benefit of voter, even if it was conferred to advance a principle enacted in public interest nonetheless the person for whose benefit the privilege was enacted has a right to waive it because the very concept of privilege inheres a right to waive it. And where a voter waives his privilege not to be compelled to disclose for whom he voted, if he wants to run the gamut of risk of disclosure it does not violate any other principle because it was enacted to help him to vote free from any inhibition or fear or apprehension of being subjected to some calamity. To hold otherwise is to perpetuate the very mischief which is sought to be suppressed. The inescapable conclusion is that Section 94 enacts a qualified privilege in favour of a voter not to be compelled to disclose for whom he voted but if he chooses to volunteer the information Section 94 is not violated." 14. The effect of violation of a mandatory provision and also as to whether a mandatory provision could be waived by the individual concerned was considered in the case of Krishan Lal Vs. State of J&K, (1994) 4 SCC 422 in the context of the provisions under Section 17 (5) of the J&K (Government Servants) Prevention of Corruption Act, 1962 and it was held that even though the requirement mentioned in the said section was mandatory, the same can be waived because the requirement of giving a copy of the proceedings of the inquiry was one which was for the benefit of the individual concerned. For ease of reference, the observations made in the judgment are being extracted below :- "26. Let it now be seen whether the requirement of giving copy of the proceeding of the inquiry mandated by Section 17(5) of the Act is one which is for the benefit of the individual concerned or serves a public purpose. If it be former, it is apparent, in view of the aforesaid legal position, that the same can be waived; if it be latter, it cannot be. Though Shri Mehta has urged that this requirement serves a public purpose, we do not agree. According to us, the requirement is for the benefit of the person concerned which is to enable him to know as to what had taken place during the course of the proceedings so that he is better situated to show his cause as to why the proposed penalty should not be imposed. Such a requirement cannot be said to be relatable to public policy or one concerned with public interest, or to serve a public purpose. 27. Such a requirement cannot be said to be relatable to public policy or one concerned with public interest, or to serve a public purpose. 27. We, therefore, hold that the requirement mentioned in Section 17(5) of the Act despite being mandatory is one which can be waived. If, however, the requirement has not been waived any act or action in violation of the same would be a nullity. In the present case as the appellant had far from waiving the benefit, asked for the copy of the proceeding despite which the same was not made available, it has to be held that the order of dismissal was invalid in law." 15. The question with regard to waiver of a right conferred under a mandatory provision again came up for consideration in the case of Commissioner of Customs, Mumbai Vs. Virgo Steels, Bombay and another, (2002) 4 SCC 316 in the context of the mandatory requirement of issuance of notice under Section 28 of the Customs Act, 1962 and it was held that even though a provision of law is mandatory in its operation if such provision is one which deals with the individual rights of person concerned and is for his benefit, the said person can always waive such a right. The observations made in this regard in the aforementioned judgment are as follows :- "14. ......it is clear that even though a provision of law is mandatory in its operation if such provision is one which deals with the individual rights of the person concerned and is for his benefit, the said person can always waive such a right. 15. Bearing in mind the above decided principle in law, if we consider the mandatory requirement of issuance of notice under Section 28 of the Act, it will be seen that that requirement is provided by the Statute solely for the benefit of the individual concerned, therefore, he can waive that right. In other words, this Section casts a duty on the Officer to issue notice to the person concerned of the proposed action to be taken. This is not in the nature of a public notice nor any person other than the person against whom the proceedings are initiated has any right for such a notice. Thus, this right of notice being personal to the person concerned, the same can be waived by that person." 16. This is not in the nature of a public notice nor any person other than the person against whom the proceedings are initiated has any right for such a notice. Thus, this right of notice being personal to the person concerned, the same can be waived by that person." 16. As regards the right to waive an advantage of law made solely for the benefit and protection of an individual in his private capacity which may be dispensed with without infringing any public right or public policy, reference may be had to the statement of law in Maxwell on The Interpretation of Statutes (Maxwell on The Interpretation of Statutes, 12th Edition (P.St.J.Langan) ) wherein at p.328 it has been stated as follows :- "Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Cuilibet licet renuntiare juri pro se introducto." 17. The same proposition of law has been restated in Craies On Statute Law, (Maxwell on The Interpretation of Statutes, 12th Edition (P.St.J.Langan)) wherein at p.269 it has been stated as follows:- "If the object of a statue is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable. This rule is expressed by the maxim of law, Quilibet potest renuntiare juri pro se introducto. As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court." 18. In the case at hand, the appellate court, taking into consideration the facts of the case, has recorded that although the release application has been filed by the petitioner-landlord much after three years of its purchase but admittedly no notice at all was given by him to the respondent-tenant before filing the release application. In the case at hand, the appellate court, taking into consideration the facts of the case, has recorded that although the release application has been filed by the petitioner-landlord much after three years of its purchase but admittedly no notice at all was given by him to the respondent-tenant before filing the release application. It has also been taken note of the fact that the release application was opposed by the respondent-tenant by raising an objection in his written statement and also in the memo of appeal and therefore it could not be said that the requirement of mandatory notice of six months has been waived of by the respondent-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 release application was held to be premature and the order of the Prescribed Authority in favour of the respondent was held to be unsustainable. 19. Counsel for the petitioner has not disputed the proposition of law with regard to the mandatory requirement of six months notice as laid down by the Supreme Court in the case of Martin Harris and subsequently affirmed by the Larger Bench of the Supreme Court in the case of Nirbhai Kumar. The view taken by the appellate court thus does not suffer from any illegality so as to warrant interference. 20. No other point was argued by the counsel for the petitioners. 21. The petition is devoid of merits and is accordingly dismissed.