The requirement of notice under the proviso to Section 21 (1) (a) of the UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1971 is mandatory, but it can be waived by the tenant.

( 1 ) THIS is the tenants writ petition against the order dated 14. 6. 1995, Annexure-2 to the writ petition, passed by the Prescribed Authority, Allahabad, and the order dated 9. 9. 1997, annexure-1 to the writ petition, passed by the VIIIth A. D. J. , Allahabad, In proceeding under section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1971 (the Act for short ). FACTS

( 2 ) ONE Smt. Husna Kunwar was the owner of the premises in dispute, namely, shop situated at 64/57, Meerganj, Allahabad. She sold it to respondent Nos. 3. Sri Hari Om Varshney and 4, Sri prahlad Varshney on 7. 8. 1984. They are now its landlord (now referred to as the landlord ). The petitioners are the tenants of the shop at the rate of Rs. 60 per month. The landlord has filed an application on 23. 9. 1991 under Section 21 (1) (a) of the Act on the ground of his personal need of his sons. This application was admittedly after 3 years from the date of purchase of the shop, but in the application it was not mentioned that landlord had given six months notice as required in provision to Section 21 (1) (a) of the Act. The petitioners have filed an objection. They denied the allegations in the application. But did not take the specific plea in their objection that six-months notice as required by the law has not been given ; though there is a general plea that application is not maintainable in view of proviso to Section 21 of the Act.

( 3 ) THE prescribed authority after considering the evidence on the record has held that the need of the landlord is bona fide and greater hardship will occasion to them in case the application is rejected. He makes a passing reference about the question regarding notice as contemplated under the proviso. The tenants filed an appeal. The appellate court upheld the findings of the prescribed authority regarding bona fide need and greater hardship. There is no discussion about the notice. The tenants appeal for their eviction was dismissed but they were awarded more compensation. POINTS FOR DETERMINATION

( 4 ) I have heard counsel for the parties, Sri Ravi Shankar Prasad argued the case with great ability for petitioners and Sri Rajesh Tandon appeared for the respondents. * Was the need bona fide? Was the hardship properly compared? * Was a notice under proviso to Section 21 (1) mandatory? Was it necessary for the landlord to plead and prove the notice under proviso to Section 21 (1) of the Act? Can the tenant waive it? * Has it been waived? bonafide NEED-HARDSHIP

( 5 ) SRI Hariom Varshney, the landlord has got three sons, namely. Prahlad Varshney, Roopak varshney and Vinay Varshney. They are doing business of vanaspati Oil in the shop. The present application has been filed for the personal need of two of his adult sons, namely, Roopak varshney and Vinay Varshney. They would like to do business separately. Both the Courts below after considering the evidence on record have held that the need of the landlord to set up his sons Roopak Varshney and Vinay Varshney in business separately is bona fide.

( 6 ) THE Courts below have also held and Sri Ashok Gulati (deceased) was the tenant of the premises in dispute and after his death, his family members. Smt. Kalpana Gulati, petitioner No. 1, wife of late Ashok Gulati ; Km. Ruchi Gulati and Km. Deepa Gulati, petitioner Nos. 2 and 3, are daughters of late Ashok Gulati ; Smt. Sudarshan Gulati, petitioner No. 4, is the mother of late ashok Gulati. have become the tenant of the premises in dispute. Smt. Kalpana Gulati lives in hathras along with her two daughters Km. Ruchi Gulati and Km. Deepa Gulati. They are studying there. Smt. Sudarshan is aged person. She never did business earlier nor now doing any business. No substantial business is being carried out at present. The business is merely for show. In view of this, the Courts below have held that in case the application of the landlord is rejected, greater hardship will occasion to him.