Guddu vs Chandra Kishore Sharma
2019 Latest Caselaw 1600 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 19
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2037 of 2019
 

 
Petitioner :- Guddu
 
Respondent :- Chandra Kishore Sharma
 
Counsel for Petitioner :- Nikhil Kumar
 
Counsel for Respondent :- Anil Kumar
 

 
Hon'ble Manoj Kumar Gupta,J.

The instant petition is directed against the concurrent findings of bonafide need and comparative hardship recorded by the Prescribed Authority and the Appellate Court in favour of the respondent-landlord in proceedings arising out of an application under Section 21(1)(a) of U.P. Act No. 13 of 1972. The Prescribed Authority has held that the need of the respondent-landlord for additional residential accommodation is genuine and bonafide, as his family comprises of six members whereas, he is in possession of one only room and verandah on the ground floor, one room and kitchen on the first floor and one store room on the second floor.

Counsel for the petitioner submitted that during pendency of the appeal, the petitioner-tenant sought amendment in the memo of appeal whereby a ground was taken to the effect that the release application was not maintainable as six month's notice contemplated under the Ist proviso to sub-section (1) of Section 21 was not given before filing the release application.

The Appellate Court has dealt with the said argument in great detail. It has observed that the said plea was not taken by the petitioner in the written statement nor at the stage of hearing before the Prescribed Authority. Even in the original memo of appeal, no such plea was taken. It has placed reliance on a notice dated 7.7.2015, which was brought on record by the respondent-landlord in appeal and was also duly admitted in evidence.By the said notice, the petitioner-tenant was asked to vacate the tenanted premises. The contention of the petitioner-tenant that the notice and the postal receipt are forged documents has been repelled.

The finding recorded by the Appellate Court regarding notice having been duly served is a finding of fact and do not warrant interference in exercise of supervisory power under Article 227 of the Constitution of India. That apart, it is now well settled that although notice under the Ist proviso to sub-section (1) of Section 21 of the Act is mandatory, but the same being for the personal benefit of the tenant, it could be waived by him.

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...."

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. 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."

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. Indisputably, 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 notice. 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 expiry of statutory period. 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."

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. It was the case of the purchaser landlord 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. 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."

Subsequently, a Bench of two Hon'ble Judges of the Supreme Court was of the opinion that the judgement 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. 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."

Accordingly, the law on the subject, deducible from the judgment 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 on account of the application being premature or absence of six months' notice.

(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.

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 raised for the first time in appeal by seeking amendment.

The plea having not been in the written statement nor at the stage of argument before the Prescribed Authority, it shall be deemed to have been waived. The petitioner-tenant is also precluded from raising the plea in view of principles of estoppel.

No other submission has been made.

This Court, accordingly, finds no merit in the instant petition and it is, therefore, dismissed.

At his stage, counsel for the petitioner prayed for sometime being granted to the petitioner to vacate the disputed premises, to which learned counsel for the respondent-landlord has no objection.

Accordingly, the petitioner is granted three months' time to vacate the disputed premises provided he furnishes an undertaking before the Prescribed Authority, within three weeks from today, that he would vacate the demised premises within three months from today and handover its vacant possession to the respondent-landlord. The petitioner shall also pay a sum of Rs. 5000/- in lump sum, as rent/damages for the said period within three weeks from today. It shall be open to the respondent-landlord to withdraw the said amount, without any security. In case of default of any of the above conditions, the protection granted hereby shall stand vacated automatically and it shall be open to the respondent-landlord to execute the release order.

(Manoj Kumar Gupta, J.)

Order Date :- 26.3.2019

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