Supreme Court of India
NIRBHAI KUMARversusMAYA DEVI & ORS.
- Citation
- 2009 INSC 393
- Decided
- 24 March 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The proviso to Section 21(1)(a) imposes a three‑year moratorium for tenant protection, allows notice of eviction to be given either before or after that period, and the six‑month notice requirement can be waived by the tenant.
Summary
The appeal concerned the interpretation of the proviso to Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The appellant, Nirbhai Kumar, argued that the three‑year bar on eviction of a sitting tenant after a change of ownership and the six‑month notice requirement were mandatory and could not be waived. The Supreme Court examined earlier conflicting decisions (Martin & Harris Ltd. and Anwar Hasan Khan) and held that the proviso creates a three‑year moratorium for tenant protection, but the six‑month notice may be given either before or after the three‑year period and can be waived by the tenant. Since the appellant had not raised the notice issue earlier, the Court deemed it waived. Consequently, the appeal was allowed, confirming that after the three‑year period the protection ceases and only the notice requirement remains.
Issues considered
- What is the scope and ambit of the proviso to Section 21(1)(a) of the Uttar Pradesh Urban Buildings Act regarding the three‑year moratorium and six‑month notice?
- Can the mandatory six‑month notice requirement under the proviso be waived by the tenant?
- Whether notice of eviction may be served before the expiry of the three‑year period?
Legislation cited
Subjects
Uttar Pradesh Urban Buildings Actevictiontenant protectionmoratoriumwaiver of mandatory provisionnotice periodlandlord‑tenant law
Judgment
r2009J 4 s.c:R. 10s2
A NIRBHAI KUMAR
v
·i --
MAYA DEVI & ORS.
Civil Appeal No. 1767 of 2005
MARCH 24, 2009
B
[DR. ARIJIT PASAYAT, LOKESHWAR SINGH PANTA
AND P. SATHASIVAM, JJ.] .,.__
....
Uttar Pradesh Urban Buildings (Regulation of Letting,
c Rent and Eviction) Act, 1972 - Section 21(1)(a), proviso - i
Scope and ambit - Held: The proviso provides for period of
three years as a moratorium for protection of tenant - If a
landlord who purchased a building seeks to evict the sitting
tenant then he is required to wait for 3 years after the date of
purchase - However notice of eviction can be given either
D -'
before or after 3 years period - After expiry of 3 years period,
protection to tenant from eviction is lifted - View expressed in
. Martin case was correct - Rent and Eviction.
Martin & Harris Ltd. v. Vlth Additional District Judge and
E Ors. 1998 (1) SCC 732; Anwar Hasan Khan v. Mohd. Shafi &
Ors. 2001 (8) SCC 540 - referred to.
'
Case Law Reference ~
1998 (1 > sec 732 referred to Para 1
F 2001 (8) sec 540 referred to Para 1
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1767
of 2005
From the Judgement and Order dated 23.09.2004 of the
G High Court of Judicature at Allahabad in Civil Misc. Recall
Application No. 109257 of 2004 in Civil Misc. Writ Petition No.
14154 of 2001.
Dinesh Divedi, Shalini Kumar, Neeru Vaid, with him for
the Appellants.
H 1052
NIRBHAI KUMAR V. MAYA DEVI & ORS. 1053
'"\~ Latika Kaushik, Narish Kaushik, Arnita Chaudhary, for the A
Respondents.
The Judgement of the Court was delivered by
DR. ARIJIT PASAYAT, J.
B
1. Noticing that there were two conflicting decisions of this
Court in Martin & Harris Ltd. v. Vlth 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
. c
•
' 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 m~tter D
has been placed before us.
3. In Martin and Harris Umited's case (supra) it was held.
in para 13 as follows:
"It is not possible to agree with the contention of the
E
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
F
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
1 give the tenants concerned a locus poenitentiae to avail
of it or not. It is easy to visualise that proceedings under G
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 cf 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 H
1054 SUPREME COURT REPORTS [2009] 4 S.C.R.
,....
A get clashed and call for adjudication by the prescribed 1
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
8 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. In this ,.
c 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 observa-
tions concerning the question of waiver of a mandatory
D 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
E 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
F examination by that body in Vel/ayan 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)
G 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
H
NIRBHAI KUMAR V. MAYA DEVI & ORS. 1055
[DR. ARIJIT PASAYAT, J.]
-......", given to the person concerned and if in a particular case A
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). B
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 c
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 D
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 E
conceived in the public interest."
t 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 F
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
1 expiry of six months' notice, did not think it fit to pursue that G
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 H
1056 SUPREME COURT REPORTS (2009] 4 S.C.R.
A only on merits and only as an afterthought at the stage of f
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
B being premature having been filed before the expiry of six
months from the date of the suit notice."
4. In Anwar Hasan Khan's case (supra) it was held in para '-·
~
10 as follows:
c "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.
~
D 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
E
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.
F 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 ...
G 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
H notice contemplated under it was never intended to be
NIRBHAI KUMAR V. MAYA DEVI & ORS. 1057
[DR. ARIJIT PASAYAT, J.]
permanent clog on the rights of the purchaser. The period A
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 than three
years and six months. Any proceedings initiated for release B
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 C
follows:
"21. Proceedings for release of building under occupation
of tenant: -
1. The prescribed authority may, on an application of D
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 E
(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 F
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 n_otice 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 G
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 tenant's protection. It is to be noted H
1058 SUPREME COURT REPORTS (2009] 4 S.C.R.
A 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
B 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).
c
8. That being the position the appeal deserves to be
allowed which we direct.
D.G. Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Uttar Pradesh Urban Buildings Act"Sign in to search