Notice under Section 21(1)(a) proviso is mandatory, and waiver of such notice by the tenant must satisfy specific conditions.

Counsel-Anand Kumar Srivastava, Advocate, for the petitioner; A.K. Gupta, Advocate, for the respondents.

This is tenant's writ petition. The landlord respondent no. 1, after purchasing the property in question from one Ram Shanker, made an application for release of the premises for bona fide need under Section 21(1)(a) of U.P. Act No. 13 of 1972, being Case No. 07 of 2007. The Civil Judge (Junior Division), Basti, after considering the pleadings of the parties and evidence brought on record, found that the need of the landlord is bona fide and therefore granted the release application. Not being satisfied with the aforesaid order of the Prescribed Authority, petitioner before this Court file an appeal under Section 22 of the U.P. Act No. 13 of 1972, which was numbered as Appeal No. 32 of 2008.The appeal has been rejected under the order dated 20.08.2010. It is against these two orders that the present writ petition has been filed.

2. On behalf of the petitioner it is contended that an specific objection was raised before the authorities below that notice, as required under Section 21(1)(a) proviso, was never forwarded by the subsequent purchaser/landlord nor was served upon the tenant and therefore the entire proceedings were vitiated. Service of such notice is condition precedent for initiation of proceedings under Section 21(1)(a). The said objection of the tenant has been rejected by the Appellate Court with reference to the judgment of the Hon'ble Supreme Court in the case of Anwar Hasan Khan v. Mohd. Shafi and others; 2001(8) SCC 540 : 2001 (2) ARC 554, wherein it has been held by a Bench of the Apex Court, comprising of two Hon'ble Judges, that if the period of three years and six months have elapsed, the requirement of notice, as contemplated by Section 21(1)(a) proviso, ceases to be applicable.

3. Counsel for the petitioner submits that the aforesaid conclusion arrived at by the courts below is legally not justified in view of the subsequent Three Judges' judgment of the Supreme Court in the case of Nirbhai Kumar vs. Maya Devi and others; 2009(1) ARC page 767, wherein the judgment in the case of Anwar Hasan Khan (supra) has been considered, as also an earlier judgment of Two Judges of the Hon'ble Supreme Court in the case of Martin and Harris Ltd. v. VIth Additional District Judge and others; (1998)(1) SCC 732: 1998(1) ARC 109. Three Judges of the Hon'ble Supreme Court have specifically recorded that the judgment in the case of Anwar Hasan Khan has not taken note of the judgment in the case of Martin and Harris Limited. The Apex Court in the case of Nirbhai Kumar have explained the law afresh and have specifically held that a notice under Section 21(1)(a) proviso is mandatory and in absence whereof the proceedings for release of accommodation by a subsequent purchaser are legally not justified. However, the Hon'ble Supreme Court has further clarified that such proviso is intended for the benefit of the tenant and therefore if the tenant does not take any objection in written statement on the application filed under Section 21(1)(a) and does not press the aforesaid issue, it is to be deemed that he has waived the said right and in that situation even if the notice under Section 21(1)(a) proviso had not been issued, the proceedings would not be rendered bad.

4. Faced with the aforesaid contention Sri A.K. Gupta, counsel for the respondent stated that the plea qua the proceedings being bad for want of notice under Section 21(1)(a) proviso had been waived by the tenant in the facts of the case and, therefore, even if the reliance upon the judgment in the case of Anwar Hasan Khan may not be strictly correct, yet this Court may not interfere with the order impugned in view of the law as explained in the case of Nirbhai Kumar. In alternative he submitted that if this Court comes to a conclusion that the issue of waiver needs to be examined by the courts below, then the writ petition may be decided at this stage