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.

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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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