Compliance with the mandatory conditions of Section 21(1)(a) of Act No. 13 of 1972, including the requirement of giving a six-month prior notice to the tenant, is crucial for the maintainability of a release application.

JUDGMENT :

The petitioner in this Writ Petition is a tenant, who has put a challenge to a non-concurrent appellate judgment dated 22nd July, 2017, as it has been passed by the Court of 5th Addl. District Judge, Dehradun, in Rent Control Appeal No. 10 of 2015, Subhash Chandra Sonkar and others Vs. Som Prakash, whereby, the Appeal filed by the tenant/respondent No.1 has been allowed, and as a consequence thereto, the release application under Section 21(1) (a) of Act No. 13 of 1972, decided on dated 5th June, 2015, as passed by the learned Prescribed Authority in PA Case No. 30 of 2009, has been set aside, and as a consequence, thereto, the release sought under Section 21 (1)(a) of Act No. 13 of 1972, has been rejected.

2. The learned counsel for the petitioner has argued that prior to the institution of the release application, he has issued a notice dated 9th February, 2009, which he has pleaded in the release application in para 2, in which he contends to argue that, that would be a notice in furtherance of the implications contained under the proviso to Section 21(1) (a) of Act No. 13 of 1972. He submits that since the condition given therein, has not been complied with, the principle of waiver would be applicable as against the respondent.

3. At this stage itself, before dealing with the argument extended by the learned Senior Counsel for the respondent, this Court feels it apt to attract para 2 of the release application, which is given hereunder :-

^^2- ;g fd izkFkhZ ds ctfj;s iathd`r uksfVl fnukad 09-02-09 ls foi{khx.k dh fdjk;snkjh lekIr dj nh gS vkSj csn[kyh dk okn U;k;ky; y/kqokn tt ¼ftyk tt½ nsgjknwu ds ;gka okn la[;k---- o"kZ 2000 lkse izdk'k foijhr lqHkk"k pUn lksudj vkfn yfEcr gSA

4. If para 2 of the release application is read, it refers to a notice of 9th February, 2009, but that would be in the context of an initiation of the proceedings under Section 15 of the Provincial Small Cause Courts Act, as it was a notice for rent and eviction under Section 106 of the Transfer of Property Act, and not a notice under the proviso to Section 21 (1) (a) of Act No. 13 of 1972, and that is quite explicit in itself, once para 2 of the release application is read in its totality, as it refers to a pending proceedings under Section 15 of the Provincial Small Cause Courts Act. As far as the release application in itself, apart from para 2, is taken into consideration, there is no plea raised by the present petitioner ever, even in this petition, that he had, at any stage pleaded, that he had complied with the mandate provided under the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, except for that as pleaded in para 2 of the release application.

5. The provisions as contained under Section 21 (1)(a) of Act No. 13 of 1972, and the mandatory condition for the initiation of proceedings under Section 21 (1) (a) of Act No. 13 of 1972, it requires a satisfaction of pre-condition of satisfying the embargo created by the first proviso to Section 21 (1) (a) of Act No. 13 of 1972. The first proviso to Section 21 (1) (a) of Act No. 13 of 1972, has to be split to be read into two parts; firstly, it is the initiation of the proceedings by filing of an application under Section 21 (1) (a) of Act No. 13 of 1972, by a new purchaser of the tenement, in question. It uses the term “entertainment of an application”. “Entertainment of an application” would mean, that though the release under Section 21 (1) (a) of Act No. 13 of 1972, could be filed prior to the expiry of the three years period by the new purchaser of the property, but same could only be allowed i.e. entertained only after the expiry of the three years from the date of the sale deed, by virtue of which, a right is created in favour of the tenant. This is not in dispute.

6. The actual debate, which has been raised by the learned counsel for the parties is that, as to whether the second part of the proviso to Section 21 (1) (a) of Act No. 13 of 1972 was at all complied with by th