JUDGMENT :

1. Heard Sri Atul Dayal, learned Senior Advocate assisted by Iqbal Ahmad, learned counsel for the petitioner and Sri Pavan Kumar, learned counsel for the respondent.

2. The short question involved in the present case is as to whether in the event of not taking an objection qua maintainability of release application under Section 21(1)(a) for the reasons that six months period had not expired after service of notice by the landlord who is admittedly subsequent purchaser of the rented property, the tenant would be taken to have waived his right of protection prescribed under first proviso to sub-section (1) of Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ‘Act, 1972’).

3. The proposition of law in respect of the above legal issue is well settled. In the case of Martin & Harris Ltd. v. VIth Additional District Judge and others, (1998) 1 SCC 732; the Supreme Court had an occasion to interpret the provision and in paragraph 9 of the said judgment it has been held that application may not be entertained but would certainly be maintainable even if it has been pre-maturely filed i.e. before expiry of six months’ notice. Paragraph 9 of the judgment runs as under:

“9. Even that apart there is an internal indication in the first proviso to Section 21(1) that the legislature has made a clear distinction between 'entertaining of an application for possession under Section 21(1) (a) of the Act and `filing' of such application. so far as the filling of such application is concerned it is clearly indicated by the Legislature that such application cannot be filled before expiry of six months form the date on which notice is given by the landlord to the tenant seeking eviction under Section 21(1) (a) of the Act. The words, `the landlord has given a notice in that behalf to the tenant not less than six months before such application', would naturally mean that before filing of such application or moving of such application before the prescribed authority notice must have preceded by at least six months. similar terminology is not employed by the Legislature in the very same proviso so far as three years' period for entertaining such application by the prescribed authority is concerned. Therefore, it must necessarily mean that when the prescribed authority is required to entertain an application on the grounds mentioned in Clause (a) of Section 21(1) a stage must be reached when the Court applies its judicial mind and takes up the case for decision on merits concerning the grounds for possession mentioned in clause (a) of Section 21(1) of the Act. Consequently on the very scheme of this Act it cannot be said that the word 'entertain' as employed by the Legislature in the firs proviso to Section 21(1) of the Act would mean 'Institution' of such proceedings before the prescribed authority or would at least mean taking cognizance of such an application by the prescribed authority by issuing summons for appearance to the tenant-defendant. It must be half that on the contrary the term 'entertain' would only show that by the time the application for possession on the grounds mentioned in clause (a)) of Section 21(1) is taken up by the prescribed authority for consideration on merits, at least minimum three years' period should have elapsed since the date of purchase of the premises by the landlord.”

4. On the question whether a decree being passed by a prescribed authority granting release in favour of the landlord even in case an application for release was filed pre-maturely would be a nullity, the court vide paragraph 10 of the judgment held that decree of the trial court having been passed much after three years’ period created as a moratorium in respect of the right of the landlord to get tenanted property released, would not be nullity for want of jurisdiction.

5. Interpreting the law on the point qua entertainability/maintainability of the application for releas