Mohd. Shafique And Others vs A.D.J., Court No. 2 Jaunpur And ...
2013 Latest Caselaw 5030 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 

 
WRIT - A- NO. 59245 of 2006
 
Mohd. Shafique and others....................Petitioners
 
                                         v.
 
Additional District Judge, Court No2,
 
Jaunpur and others......................................Respondents.
 

 
                                          ******
 

 

 
Hon'ble Rajes Kumar, J.

The petitioners, who are the landlords of the premises in dispute, are challenging the order of the Additional District Judge, Court No.2, Jaunpur, dated 2nd September, 2006 by which he has rejected the appeal filed by the petitioners against the order of the Prescribed authority, dated 8th July, 2004.

Briefly stated, the facts giving rise to the controversy involved in the writ petition, are that the petitioners purchased the shop in dispute on 17th March, 1997 from Mohd. Isha. Mohd. Yaqub was the tenant in the shop in dispute, who was carrying on the business of repairing of cycle and after his death his daughter, Smt. Johra Yaqub, became the tenant. However, in the shop in dispute, one Wasim Ahmad, the nephew of Mohd. Yaqub, is carrying on the business of cycle repairing and the shop is being occupied by him, alleged to be with the consent of Johra Yaqub, who is also now dead. The petitioners filed a release application in May, 2000, which has been registered as P.A. No. 3 of 2000, for eviction of the respondents from the shop in dispute. The respondents filed the written statement. Apart from denying various facts stated in the release application, in paragraph-34 of the written statement, it was contended that the shop in dispute was purchased in the year 1997, but no notice, as required under the proviso to Section 21(1) (a) has been given nor any such notice has been received by them, thus, the release application is not maintainable and is liable to be rejected to which the petitioners filed replica stating therein that on 1st February, 1999 a notice has been given to the defendant-respondents by registered post through Sri Riyaz Ahmad Advocate. A carbon copy of the registry receipt of such notice has been provided, but despite search being made, the original receipt of the registry could not be traced and also stated that in the absence of the original, the photo copy of the receipt of the registry is being filed.

By the order dated 8th July, 2004, the Prescribed authority allowed the release application and directed the defendant-respondents to vacate the shop in dispute within three months. Smt. Johra Yaqub and others filed the appeal against the said order, dated 8th July, 2004, which has been registered as Appeal No. 4 of 2005. In between 2004 and 2005, execution proceeding also took place, however, detail of such proceedings is not necessary for the purposes of the present case. The appellate authority allowed the appeal vide an order dated 2nd September, 2006 by setting aside the order dated 8th July, 2004, passed by the Prescribed authority. The appellate authority has allowed the appeal on the sole ground that the petitioners have not given notice prior to six months of filing of the release application as required under proviso to Section 21(1)(a) of Act No. 13 of 1972 and as such the release application was not maintainable. The appellate authority did not agree with the view of the Prescribed authority that in case of filing of the release application after expiry of three years from the date of the purchase of the property in dispute, notice, under proviso to Section 21(1)(a) of the Act, is not required to be issued. Aggrieved by the said order, the present writ petition has been filed.

Heard Sri Rama Kant Tiwari, learned counsel for the petitioners and Sri Ashok Kumar Tiwari, learned counsel, appearing on behalf of the respondents.

Learned counsel for the petitioners submitted that the shop in dispute was purchased on 17th March, 1997. A notice was given on 1st February, 1999 by registered post through Sri Riyaz Ahmad, Advocate. Photostat copy of the receipt of the registry was filed. The appellate court erred in holding that the plea that the notice has been given on 1st February, 1999 is concocted as it has not been proved by any evidence; photostat copy of the receipt of the registry is not admissible as an evidence. It has further been submitted that it has wrongly been observed by the appellate court that the landlord has not stated any thing in the release application about the notice, which is alleged to have been given on 1st February, 1999 and when in the written statement it has been contended that no notice has been issued and served upon the tenants then in replica, the landlord has come out with the case that a notice dated 1st February, 1999 has been given by registered post through Sri Riyaz Ahmad, Advocate, however, there was no need of giving any notice to the tenant as the release application has been filed after expiry of three years from the date of purchase of the property. The appellate court has erred in holding that the landlord failed to prove that any notice has been given on 1st February, 1999. It has further been submitted that since the release application was filed after expiry of three years from the date of purchase of the property in dispute, no notice was required to be issued.

Learned counsel for the respondents, while relying upon the order of the appellate court, has submitted that the notice under proviso to Section 21(1)(a) is mandatory and in the absence of the notice being issued, the release application was not maintainable. He submitted that the petitioners failed to prove that the notice dated 1st February, 1999 was issued and served upon the respondents. The findings recorded by the appellate court in this regard are findings of fact, which, in the absence of any material to the contrary, cannot be interfered with.

I have considered rival submissions and perused the impugned order as well as other materials.

Section 21(1)(a) alongwith its first proviso 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 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:

A bare perusal of the proviso to Section 21(1) (a) makes it clear that even in a case where the release application is being filed after the expiry of three years from the date of purchase of the property, a notice to the tenant, not less than prior to six months of filing the release application is necessary for entertaining the release application. Therefore, the view of the Prescribed authority that since the release application was filed after expiry of three years from the date of purchase of the property, notice is not necessary, is erroneous. The notice is mandatory, to be issued, before filing of the release application, even after expiry of three years from the date of purchase of the property.

The first proviso to Section 21 (1) (a) of the Act came up for consideration before the Apex Court in the case of Martin & Harris Ltd. Vs. VIth District Judge and others (supra). The Apex Court held as follows:

"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, course, true that it is enacted to cover a class of tenants who are sitting tenants and whose premises are subsequently purchased by landlords will seek to evict the sitting tenants on the ground of bona fide requirement 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 locus poeniteniae to avail of it or not. It is easy to visualise that proceeding 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. In this connection we may profitably refer to a decision of this Court in the case of Krishna Lal v. State of J & K, reported in (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 proceed 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, reported in AIR 1947 PC 197 in which while accepting that Section 80 of the Code of Civil Procedure is mandatory, which was the view taken in Bhagchand Dagadusa v. Secy. of State for India-in-Council, reported in (1927) 54 IA 338 it was held that even if a notice under Section 80 be defective, the same would not per se render the suit requiring issuance of such a notice as a precondition for instituting the same as bad in the eye of law, as such a defect can be waived. This view was taken by pointing out that the protection provided by Section 80 is a protection given to the person concerned and if in a particular case that person does not require the protection he can lawfully waive his right. A distinction was made in this regard where the benefit conferred was to serve 'an important purpose', in which case there would not be waiver, (see paragraph 14).

17- This point had come up for examination by this Court in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh, reported in AIR 1964 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 Sikhar v. Behari Lal Kirtania, reported in ILR 35 Cal 61 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 scape 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."

So far as the contention of the learned counsel for the petitioners that the notice was given on 1st February, 1999 by registered post through Sri Riyaz Ahmad, Advocate, therefore, the release application was maintainable, is concerned, in my view the contention has no substance and as such cannot be accepted. In the release application, nothing has been said about the notice. When in paragraph-34 of the written statement, it has been contended by the defendant-respondents that no notice has been issued or served to the defendant-respondents, as required under proviso to Section 21(1)(a), only then for the first time, in the replica, the petitioners came out with the case that the notice dated 1st February, 1999 has been issued by registered post through Sri Riyaz Ahmad, Advocate. It would be appropriate to refer contention as made in paragraphs 12, 13, 14 and 15 in the replica by the petitioners, which are as under:

12- ;g fd 1-2-1999 dks crkSj ,gfr;kr uksfVl jftLVªh 'kqnk ekQZr Jh fj;kt vgen ,MoksdsV nhoku dpgjh vius cSukesa ,oa lnHkkfod vko';drk ds eqrfYyd fn;k Fkk tks izfroknhx.k ij cktkIrk rkehy gqbZA

13- ;g fd Jh js;kt vgen ,MoksdsV lkgc us uksfVl dh ,d dkcZu izfr eqnnbZ dks ns fn;k vkSj nwljh dkcZu izfr ,oa vly jftLVªh dh jlhn vius ikl j[kk fd okn izLrqr djus esa dke vkosxhA

14- ;g fd okn i= eqdnek gktk rS;kj gks tkus ij eqnnbZ;ku Jh fj;kt vgen ,MoksdsV ds ikl vly jftLVªh dh jlhn ekaxus x;s rks odhy ekSlwQ us mls cgqr ryk'k fd;k exj nLr;kc ugh gks ldk vkSj mUgksus crk;k fd ekywr gksrk gSA fd dgha xk;c gks x;kA

15- ;g fd uksfVl fnukad 1-2-1999 dh dkcZu izfr ,oa iathd`r Mkd ds jlhn dh QksVks LVsV izfr tks esjs lkeus rS;kj gqbZ Fkh ge jkg tokcqy tokc gktk nkf[ky dh tk jgh gSA

From the entire facts and circumstances, it is apparent that when an objection has been taken by the defendant-respondents in the written statement about issue of notice, a concocted plea has been taken in the replica by the petitioners. No evidence has been adduced to substantiate the claim. The appellate court has rightly held that the photostat copy of the receipt of the Registered Post is not admissible. Thus, on the facts and circumstances, the appellate court has rightly arrived to the conclusion that the land-lord failed to prove that the notice has been issued as required under the proviso to Section 21(1)(a) of the Act.

In view of what has been discussed in the foregoing paragraphs, in the result, the writ petition, being devoid of merits, fails and is dismissed.

Order Date :- 12.8.2013

bgs/