High Court

Hon'ble Ashutosh Srivastava,J.

1. Heard Shri Saurabh Srivastava along with Shri Arpit Agarwal, learned counsels for the tenant-petitioners and Shri Alok Tiwari along with Shri Madhuranjan Pandey, learned counsels for the landlord-respondents.

2. The instant writ petition at the instance of the tenant-petitioners relates to a shop admeasuring 11 feet x 22 feet situate at Jagdish Prasad Road, Tehsil Sadar, District Pilibhit. The said shop was leased out to the petitioners by the erstwhile owner namely Smt. Ram Rati Devi w/o Deshraj. The landlord-respondents purchased the shop in dispute from the erstwhile owner under sale deed dated 10.07.1984.

3. The challenge laid in this writ petition is to the order dated 12.12.2012 passed by the Prescribed Authority/Additional Chief Judicial Magistrate, Court No. 2, Pilibhit in Prescribed Authority Case No. 2 of 2010 directing the eviction of the petitioners from the premises in dispute u/s 21 of the U.P. Act No. 13 of 1972 as also the judgment and order dated 20.12.2023 passed by learned ADJ, Court No. 1, Pilibhit in Prescribed Authority Appeal No. 4 of 2013 whereby dismissing the appeal and upholding the order of the Prescribed Authority dated 12.12.2012.

4. Learned counsel for the parties jointly agree that the only issue for consideration of this Court in the instant writ petition is as to whether compliance of the 1st proviso to Section 21(1) of the U.P. Act No. 13 of 1972 has been made.

5. Shri Saurabh Srivastava, learned counsel for the tenant-petitioners submits that the release application was filed u/s 21(1)(a) without complying with the requirement of the 1st Proviso to Section 21(1) and in such view of the matter the application u/s 21(1)(a) of the Act was clearly not maintainable. Learned counsel for the tenant-petitioners has invited the attention of this Court to the averments made in the Release Application which has been brought on record as Annexure No. 3 to the writ petition to submit that there is no whisper of issuance of any notice in compliance of the 1st Proviso to Section 21(1)(a) or to any earlier application u/s 21(1)(a). It is urged that in the written statements filed to the Release Application u/s 21(1)(a) specific plea was taken in para 14 thereof about non-compliance of the requirement of notice under the 1st Proviso and an issue being Issue No. 3 was struck by the learned Prescribed Authority but was not adjudicated in the correct perspective. In appeal, the landlord-respondents attempted to bring on record the notice dated 18.9.1986 as additional evidence but the same was rejected by the appellant's authority vide order dated 23.4.2016 which order attained finality. The Appellate Authority however subsequently vide order dated 17.5.2022 permitted the additional evidence to be brought on record. Placing reliance upon Para No. 4 and 6 of the decision of the Apex Court in the case of Nirbhai Kumar Vs. Maya Devi & Others reported in 2009 (1) ARC 767 Sri Saurabh Srivastava, learned counsel for the tenant petitioners contends that issuance of notice is mandatory. It is also argued that even if the alleged notice is held to be on record the same was not proved. It is accordingly prayed that the impugned orders are liable to be set aside and the writ petition allowed.

6. Per contra, Shri Alok Tiwari along with Shri Madhuranjan Pandey, learned counsels for the landlord-respondents in opposition to the writ petition submit that both the Prescribed Authority as also the appellate's authority has recorded findings of fact about bonafide need and comparative hardship against the tenant-petitioners and such findings of fact are not required to be interfered within proceedings under Article 227 of the Constitution of India. It is also contended that in earlier two rounds of litigation i.e. Prescribed Authority Case No. 5 of 1988 and Injunction Suit No. 28 of 2010 the petitioners have accepted the respondents as their landlords. In the Prescribed Authority Case No. 5 of 1988 (release application has been brought on record at pages 415 to 422 a notice complying with the 1st Proviso of Section 21(1)) had been served upon the petitioners on 18.9.1986. The Apex Court in the case of Martin & Harris Ltd. Vs. VIth Additional District Judge and Others reported in 1998 (1) SCC 732 while delaying with the 1st Proviso to Section 21(1)(a) of the U.P. Act No. 13 of 1972 held that the prohibition imposed by the statute was with a view to affording protection to a party, such protection could be waived by the party. The six months breathing time given to a tenant after service of notice is to enable him to put his house in order and get the matter settled amicably or to get alternative accommodation. It is also argued that besides taking objection in the writ statement further action or proceedings are required to be undertaken by the tenant. This having not been done by the tenant-petitioners, there is no error in the impugned orders and the writ petition is liable to be dismissed.

7. I have heard the learned counsels for the parties and have perused the records. From the submissions advanced by the parties the following question falls for consideration. "Whether a notice issued by the landlord purported to be in compliance of the 1st Proviso to Section u/s 21 (1) (a) of the U.P. Act No. 13 of 1972 in respect of a release application filed u/s 21(1)(a) of the Act, would absolve the landlord from issuing Fresh Notice before instituting another Release Application after expiry of 3 years from the notice?"

8. In the instant case admittedly a notice dated 18.9.1986 was issued to the writ petitioner by the landlord-respondents and Prescribed Authority Case No. 5 of 1988 was filed. The Prescribed Authority Case No. 2 of 2010 giving rise to the present proceedings was filed without giving fresh notice.

9. A co-ordinate Bench of this Court in the Case of Abdul Jabbar Vs. VII Additional District Judge and Others (Civil Misc. Writ Petition No. 6961 of 1981 decided on 29.10.1988) while dealing with the 1st Proviso to Section 21 (1) (a) of the U.P. Act No. 13 of 1972 observed in Paras No. 10, 11 and 12 of the judgment as under:- "10. From a reading of the aforesaid proviso, it is apparent that there are two conditions precedent before an application u/s 21(1)(a) can be entertained in respect of the landlord who has purchased a property which was already in occupation of the tenant. The first condition being that the application for release shall not be entertain-able unless three years period has expired from the date of purchase and, secondly, unless the landlord gives six months'' notice to the tenant before moving the application.

11. The words in the proviso ''in that behalf are very significant. The notice spoken of in the proviso is not merely a notice to the tenant of the factum of the purchase of the property by a subsequent landlord, but the notice has to be in regard to the fact that the purchaser wants to move an application for release u/s 21(1)(a) of the Act. The notice contemplated, in my opinion, is only an intimation to the tenant to the affect 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. This notice, in my opinion, is mandatory because it is a condition precedent for the entertainment of an application u/s 21(1)(a) of the Act in respect of the purchaser of a property where a tenant had already been in occupation of the said property.

12. In Smt. Nazuk Jahan v. Additional District Judge 1981 ARC 530, the Hon''ble Supreme Court had an occasion to consider the nature of the notice to be given under the proviso to Section 21 quoted above. It was observed by the court that the notice cannot be a casual or oral request to the tenant but a formal demand ordinarily in writing and clearly insisting on vacant possession after the requisite period."

10. The interpretation of the first proviso to Section 21(1)(a) of the U.P. Act No. 13 of 1972 came up for consideration before the Supreme Court in the case of Martin & Harris Ltd. Vs. District Judge (Supra), 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. 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 (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 vs. Secy. of State for India- in-Council [(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 (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 Sikdar v. Behari Lal Kirtania (ilr 35 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."

11. Subsequently in the case of Anwar Hasan Khan Vs. Mohd. Shafi (Supra), it was held that the period for not initiating eviction against the tenant under Section 21(1) (a) proviso of the Act was three years and in no case for more than three years and six months and any proceedings initiated for release of building after the said period did not require the service of the notice of six months. The observations made in the aforesaid judgement are reproduced herein under:- "10. Keeping in mind the object of the Act to provide safeguards to the tenant, the first proviso to Section 21 of the Act was added to ensure that the unscrupulous litigants do not transfer properties only for the purposes of creating grounds for eviction of the tenant in occupation thereof. The aforesaid proviso, however, was not intended to put any restriction upon the owners of the property not to transfer it under any circumstances. To ensure that the sale transaction was valid and not mala fide, a statutory bar was created vide the aforesaid proviso for the transferee to seek the eviction of the tenant with respect to such purchased property. The proviso mandates that no application shall be entertained by the prescribed authority on the grounds mentioned in clause (a) of sub-section (1) of Section 21 of the Act unless a period of three years had elapsed since the date of such purchase. It further provides that no application under the said clause shall be entertained unless the landlord had given a notice to the tenant not less than six months before the filing of such application and such notice may be given even before the expiration of a period of three years. The object of the service of the notice is to furnish information to the tenant about the requirement of the landlord in order to enable him to search for an alternative accommodation or to find out as to whether the sale made by his erstwhile owner was genuine and bona fide or not. The proviso and the notice contemplated under it was never intended to be permanent clog on the rights of the purchaser. The 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."

12. 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 (supra) the reference was answered in the following terms:- "4. Section 21 (1) of the Act so far as relevant reads as follows: "21. Proceedings for release of building under occupation of tenant:

1. The prescribed authority may, on an application of the landlord in that behalf, order eviction of a tenant from the building under tenancy or any of the following grounds exist, namely- (a)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. 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)."

13. In terms of the law as laid down in the case of Martin & Harris (supra) which was subsequently affirmed in the case of Nirbhai Kumar (supra), the bar under the first proviso to Section 21(1)(a) requiring the landlord to file an application for eviction after expiry of six months from the date of issuance of notice to the tenant, has been held to be a mandatory provision which gives a protection by way of locus poenitentiae to the tenant which he can avail or not. The provision which obviously has been enacted for the benefit and protection of the tenant was held to provide a breathing time given to the tenant which was personal in nature and no public interest being involved therein such beneficial provision could be waived by the tenant.

14. From the perusal of the records, the Court finds that Issue No. 3 was struck before the learned Prescribed Authority regarding the maintainability of the Release Application in the absence of compliance to the 1st Proviso to Section 21(1)(a). The said issue has been decided against the tenant-petitioners holding that no notice is required after expiry of 3 years period. The prescribed authority was of the view that the landlords had purchased the property from the erstwhile landlords in the year 1984 and filed the release application in the year 2010 after 26 years and as such issuance of notice was not required. In the opinion of the Court the conclusion of the learned prescribed authority to the above effect is contrary to the law laid down by the Apex Court in the case of Nirbhai Kumar Vs. Maya Devi and Other reported in 2009 (1) ARC 767, which has upheld the view taken in the case of Martin & Harris (Supra) holding that issuance of notice is mandatory however it can be waived. The Appellate Authority also taking an erroneous view, relying upon the decision of the co-ordinate Bench of this Court in the case of Pushpa Raj and Others Vs. District Judge, Meerut and Others reported in 2009 (3) ARC 267 dismissed the Appeal and upheld the order of the Prescribed Authority allowing the release application. The conclusion drawn cannot be approved in view of the law laid down in the case of Nirbhai Kumars' Case.

15. Besides there is one other aspect of the matter. The landlord-respondents admittedly had given notice dated 08.09.1986 to the tenant-petitioners and instituted Prescribed Authority No. 5 of 1988. Thereafter, they accepted the tenant- petitioners as their tenant by accepting rent etc. for a period of 26 years. The landlord-respondents by their conduct in the opinion of the Court waived the said notice dated 18.09.1988. The Prescribed Authority Case No. 2 of 2010 admittedly was not filed complying with the requirement of the 1st Proviso to Section 21(1)(a) of the U.P. Act No. 13 of 1972. The Release Application was not maintainable.

16. The impugned order dated 12.12.2012 passed by the Prescribed Authority/Additional Chief Judicial Magistrate, Court No. 2, Pilibhit in Prescribed Authority Case No. 2 of 2010 directing the eviction of the petitioners from the premises in dispute u/s 21 of the U.P. Act No. 13 of 1972 as also the judgment and order dated 20.12.2023 passed by learned ADJ, Court No. 1, Pilibhit in Prescribed Authority Appeal No. 4 of 2013 whereby dismissing the appeal and upholding the order of the Prescribed Authority dated 12.12.2012, are set aside. The release application is dismissed.

17. In view of the above the writ petition succeeds and is allowed.

18. Parties to bear their own costs. Order Date:- 07.03.2025/VS

Hon'ble Ashutosh Srivastava,J.

1. Heard Shri Saurabh Srivastava along with Shri Arpit Agarwal, learned counsels for the tenant-petitioners and Shri Alok Tiwari along with Shri Madhuranjan Pandey, learned counsels for the landlord-respondents.

2. The instant writ petition at the instance of the tenant-petitioners relates to a shop admeasuring 11 feet x 22 feet situate at Jagdish Prasad Road, Tehsil Sadar, District Pilibhit. The said shop was leased out to the petitioners by the erstwhile owner namely Smt. Ram Rati Devi w/o Deshraj. The landlord-respondents purchased the shop in dispute from the erstwhile owner under sale deed dated 10.07.1984.

3. The challenge laid in this writ petition is to the order dated 12.12.2012 passed by the Prescribed Authority/Additional Chief Judicial Magistrate, Court No. 2, Pilibhit in Prescribed Authority Case No. 2 of 2010 directing the eviction of the petitioners from the premises in dispute u/s 21 of the U.P. Act No. 13 of 1972 as also the judgment and order dated 20.12.2023 passed by learned ADJ, Court No. 1, Pilibhit in Prescribed Authority Appeal No. 4 of 2013 whereby dismissing the appeal and upholding the order of the Prescribed Authority dated 12.12.2012.

4. Learned counsel for the parties jointly agree that the only issue for consideration of this Court in the instant writ petition is as to whether compliance of the 1st proviso to Section 21(1) of the U.P. Act No. 13 of 1972 has been made.

5. Shri Saurabh Srivastava, learned counsel for the tenant-petitioners submits that the release application was filed u/s 21(1)(a) without complying with the requirement of the 1st Proviso to Section 21(1) and in such view of the matter the application u/s 21(1)(a) of the Act was clearly not maintainable. Learned counsel for the tenant-petitioners has invited the attention of this Court to the averments made in the Release Application which has been brought on record as Annexure No. 3 to the writ petition to submit that there is no whisper of issuance of any notice in compliance of the 1st Proviso to Section 21(1)(a) or to any earlier application u/s 21(1)(a). It is urged that in the written statements filed to the Release Application u/s 21(1)(a) specific plea was taken in para 14 thereof about non-compliance of the requirement of notice under the 1st Proviso and an issue being Issue No. 3 was struck by the learned Prescribed Authority but was not adjudicated in the correct perspective. In appeal, the landlord-respondents attempted to bring on record the notice dated 18.9.1986 as additional evidence but the same was rejected by the appellant's authority vide order dated 23.4.2016 which order attained finality. The Appellate Authority however subsequently vide order dated 17.5.2022 permitted the additional evidence to be brought on record. Placing reliance upon Para No. 4 and 6 of the decision of the Apex Court in the case of Nirbhai Kumar Vs. Maya Devi & Others reported in 2009 (1) ARC 767 Sri Saurabh Srivastava, learned counsel for the tenant petitioners contends that issuance of notice is mandatory. It is also argued that even if the alleged notice is held to be on record the same was not proved. It is accordingly prayed that the impugned orders are liable to be set aside and the writ petition allowed.

6. Per contra, Shri Alok Tiwari along with Shri Madhuranjan Pandey, learned counsels for the landlord-respondents in opposition to the writ petition submit that both the Prescribed Authority as also the appellate's authority has recorded findings of fact about bonafide need and comparative hardship against the tenant-petitioners and such findings of fact are not required to be interfered within proceedings under Article 227 of the Constitution of India. It is also contended that in earlier two rounds of litigation i.e. Prescribed Authority Case No. 5 of 1988 and Injunction Suit No. 28 of 2010 the petitioners have accepted the respondents as their landlords. In the Prescribed Authority Case No. 5 of 1988 (release application has been brought on record at pages 415 to 422 a notice complying with the 1st Proviso of Section 21(1)) had been served upon the petitioners on 18.9.1986. The Apex Court in the case of Martin & Harris Ltd. Vs. VIth Additional District Judge and Others reported in 1998 (1) SCC 732 while delaying with the 1st Proviso to Section 21(1)(a) of the U.P. Act No. 13 of 1972 held that the prohibition imposed by the statute was with a view to affording protection to a party, such protection could be waived by the party. The six months breathing time given to a tenant after service of notice is to enable him to put his house in order and get the matter settled amicably or to get alternative accommodation. It is also argued that besides taking objection in the writ statement further action or proceedings are required to be undertaken by the tenant. This having not been done by the tenant-petitioners, there is no error in the impugned orders and the writ petition is liable to be dismissed.

7. I have heard the learned counsels for the parties and have perused the records. From the submissions advanced by the parties the following question falls for consideration. "Whether a notice issued by the landlord purported to be in compliance of the 1st Proviso to Section u/s 21 (1) (a) of the U.P. Act No. 13 of 1972 in respect of a release application filed u/s 21(1)(a) of the Act, would absolve the landlord from issuing Fresh Notice before instituting another Release Application after expiry of 3 years from the notice?"

8. In the instant case admittedly a notice dated 18.9.1986 was issued to the writ petitioner by the landlord-respondents and Prescribed Authority Case No. 5 of 1988 was filed. The Prescribed Authority Case No. 2 of 2010 giving rise to the present proceedings was filed without giving fresh notice.

9. A co-ordinate Bench of this Court in the Case of Abdul Jabbar Vs. VII Additional District Judge and Others (Civil Misc. Writ Petition No. 6961 of 1981 decided on 29.10.1988) while dealing with the 1st Proviso to Section 21 (1) (a) of the U.P. Act No. 13 of 1972 observed in Paras No. 10, 11 and 12 of the judgment as under:- "10. From a reading of the aforesaid proviso, it is apparent that there are two conditions precedent before an application u/s 21(1)(a) can be entertained in respect of the landlord who has purchased a property which was already in occupation of the tenant. The first condition being that the application for release shall not be entertain-able unless three years period has expired from the date of purchase and, secondly, unless the landlord gives six months'' notice to the tenant before moving the application.

11. The words in the proviso ''in that behalf are very significant. The notice spoken of in the proviso is not merely a notice to the tenant of the factum of the purchase of the property by a subsequent landlord, but the notice has to be in regard to the fact that the purchaser wants to move an application for release u/s 21(1)(a) of the Act. The notice contemplated, in my opinion, is only an intimation to the tenant to the affect 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. This notice, in my opinion, is mandatory because it is a condition precedent for the entertainment of an application u/s 21(1)(a) of the Act in respect of the purchaser of a property where a tenant had already been in occupation of the said property.

12. In Smt. Nazuk Jahan v. Additional District Judge 1981 ARC 530, the Hon''ble Supreme Court had an occasion to consider the nature of the notice to be given under the proviso to Section 21 quoted above. It was observed by the court that the notice cannot be a casual or oral request to the tenant but a formal demand ordinarily in writing and clearly insisting on vacant possession after the requisite period."

10. The interpretation of the first proviso to Section 21(1)(a) of the U.P. Act No. 13 of 1972 came up for consideration before the Supreme Court in the case of Martin & Harris Ltd. Vs. District Judge (Supra), 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. 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 (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 vs. Secy. of State for India- in-Council [(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 (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 Sikdar v. Behari Lal Kirtania (ilr 35 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."

11. Subsequently in the case of Anwar Hasan Khan Vs. Mohd. Shafi (Supra), it was held that the period for not initiating eviction against the tenant under Section 21(1) (a) proviso of the Act was three years and in no case for more than three years and six months and any proceedings initiated for release of building after the said period did not require the service of the notice of six months. The observations made in the aforesaid judgement are reproduced herein under:- "10. Keeping in mind the object of the Act to provide safeguards to the tenant, the first proviso to Section 21 of the Act was added to ensure that the unscrupulous litigants do not transfer properties only for the purposes of creating grounds for eviction of the tenant in occupation thereof. The aforesaid proviso, however, was not intended to put any restriction upon the owners of the property not to transfer it under any circumstances. To ensure that the sale transaction was valid and not mala fide, a statutory bar was created vide the aforesaid proviso for the transferee to seek the eviction of the tenant with respect to such purchased property. The proviso mandates that no application shall be entertained by the prescribed authority on the grounds mentioned in clause (a) of sub-section (1) of Section 21 of the Act unless a period of three years had elapsed since the date of such purchase. It further provides that no application under the said clause shall be entertained unless the landlord had given a notice to the tenant not less than six months before the filing of such application and such notice may be given even before the expiration of a period of three years. The object of the service of the notice is to furnish information to the tenant about the requirement of the landlord in order to enable him to search for an alternative accommodation or to find out as to whether the sale made by his erstwhile owner was genuine and bona fide or not. The proviso and the notice contemplated under it was never intended to be permanent clog on the rights of the purchaser. The 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."

12. 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 (supra) the reference was answered in the following terms:- "4. Section 21 (1) of the Act so far as relevant reads as follows: "21. Proceedings for release of building under occupation of tenant:

1. The prescribed authority may, on an application of the landlord in that behalf, order eviction of a tenant from the building under tenancy or any of the following grounds exist, namely- (a)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. 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)."

13. In terms of the law as laid down in the case of Martin & Harris (supra) which was subsequently affirmed in the case of Nirbhai Kumar (supra), the bar under the first proviso to Section 21(1)(a) requiring the landlord to file an application for eviction after expiry of six months from the date of issuance of notice to the tenant, has been held to be a mandatory provision which gives a protection by way of locus poenitentiae to the tenant which he can avail or not. The provision which obviously has been enacted for the benefit and protection of the tenant was held to provide a breathing time given to the tenant which was personal in nature and no public interest being involved therein such beneficial provision could be waived by the tenant.

14. From the perusal of the records, the Court finds that Issue No. 3 was struck before the learned Prescribed Authority regarding the maintainability of the Release Application in the absence of compliance to the 1st Proviso to Section 21(1)(a). The said issue has been decided against the tenant-petitioners holding that no notice is required after expiry of 3 years period. The prescribed authority was of the view that the landlords had purchased the property from the erstwhile landlords in the year 1984 and filed the release application in the year 2010 after 26 years and as such issuance of notice was not required. In the opinion of the Court the conclusion of the learned prescribed authority to the above effect is contrary to the law laid down by the Apex Court in the case of Nirbhai Kumar Vs. Maya Devi and Other reported in 2009 (1) ARC 767, which has upheld the view taken in the case of Martin & Harris (Supra) holding that issuance of notice is mandatory however it can be waived. The Appellate Authority also taking an erroneous view, relying upon the decision of the co-ordinate Bench of this Court in the case of Pushpa Raj and Others Vs. District Judge, Meerut and Others reported in 2009 (3) ARC 267 dismissed the Appeal and upheld the order of the Prescribed Authority allowing the release application. The conclusion drawn cannot be approved in view of the law laid down in the case of Nirbhai Kumars' Case.

15. Besides there is one other aspect of the matter. The landlord-respondents admittedly had given notice dated 08.09.1986 to the tenant-petitioners and instituted Prescribed Authority No. 5 of 1988. Thereafter, they accepted the tenant- petitioners as their tenant by accepting rent etc. for a period of 26 years. The landlord-respondents by their conduct in the opinion of the Court waived the said notice dated 18.09.1988. The Prescribed Authority Case No. 2 of 2010 admittedly was not filed complying with the requirement of the 1st Proviso to Section 21(1)(a) of the U.P. Act No. 13 of 1972. The Release Application was not maintainable.

16. The impugned order dated 12.12.2012 passed by the Prescribed Authority/Additional Chief Judicial Magistrate, Court No. 2, Pilibhit in Prescribed Authority Case No. 2 of 2010 directing the eviction of the petitioners from the premises in dispute u/s 21 of the U.P. Act No. 13 of 1972 as also the judgment and order dated 20.12.2023 passed by learned ADJ, Court No. 1, Pilibhit in Prescribed Authority Appeal No. 4 of 2013 whereby dismissing the appeal and upholding the order of the Prescribed Authority dated 12.12.2012, are set aside. The release application is dismissed.

17. In view of the above the writ petition succeeds and is allowed.

18. Parties to bear their own costs. Order Date:- 07.03.2025/VS