Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1767 OF 2005
Nirbhai Kumar …..Appellant
Versus
Maya Devi & Ors. ….Respondents
J U D G M E N T
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.
2
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).
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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.”
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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
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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
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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
appear 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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(P. SATHASIVAM)
New Delhi,
March 24, 2009
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