Nirbhai Kumar Vs.
Maya Devi and Ors. [2009] INSC 610 (24 March 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1767 OF 2005 Nirbhai
Kumar .....Appellant Versus Maya Devi & Ors. ....Respondents
Dr. ARIJIT PASAYAT,
J.
1.
Noticing
that there were two conflicting decisions of this Court in Martin & Harris
Ltd. v. VIth Additional District Judge and Ors. [1998 (1) SCC 732] and Anwar
Hasan Khan v. Mohd. Shafi & Ors. [2001 (8) SCC 540], reference was made to
larger Bench.
2.
The
case decided by two Hon'ble Judges of this Court in both the cases related to
the scope of and ambit of proviso to Section 21(1)(a) of the U.P. Urban
Buildings (Regulation of Letting, rent and Eviction) Act, 1972 (in short the
`Act'). As directed by the Hon'ble The Chief Justice of India, the matter has
been placed before us.
3.
In
Martin and Harris Limited's case (supra) it was held in para 13 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, 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 v. 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."
4. In Anwar Hasan
Khan's case (supra) it was held in para 10 as follows:
"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 5 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."
5. 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."
6. 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.
7. Above being the position
the decision in Martin & Harris Ltd.'s case (supra) expressed the correct
view. Unfortunately, the said decision not appears to have been placed before
the Bench which heard Anwar Hasan Khan's case (supra).
8. That being the
position the appeal deserves to be allowed which we direct.
..........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
(LOKESHWAR SINGH PANTA)
..........................................J.
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