# Prem Singh v. The A.D.J. Gorakhpur & Ors

- **Citation:** (2022) 12 ILRA 909
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-22
- **Case number:** Writ A No. 25479 of 2018
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-singh-v-the-a-d-j-gorakhpur-ors-48066
- **Pages:** 17

## Headnote

Law
-
U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction )
Act, 1972-Section 21 (1)-Impugned order -
order of release -on ground of bona fide needAppeal -affirmation-Writ-landlady purchased the
demised premise and instituted proceedings
after three years-did not waited for period of six
months after service of notice upon tenant-to
vacate-if proceeding is against a sitting tenant
from time of the former landlord's ownership u/s
21-irrespective of the fact whether three years
moratorium u/s 21 has expired or notmandatory notice can be waived by the tenant-
belated plea about want of notice through an
amended ground in Appeal by tenant-rightly not
accepted by Appellate Authority.

Petition dismissed. (E-9)

List of Cases cited:

1 Smt. Kalpana Gulati & ors. Vs 8th Addl. D.J.
Allahabad & ors., (1999) 2 AWC 1656

2 Izhaar Ali & anr. Vs Prescribed Authority/
J.S.C.C., Sitapur & ors., (2014) 107 ALR 88

3 Martin & Harris Ltd. Vs VIth Additional Distt.
Judge & ors., (1998) 1 SCC 732

4 Anwar Hasan Khan Vs Mohd. Shafi & ors.,
(2001) 8 SCC 540

## Text

_Characters 0–39,791 of 58,912. This is a partial read: ask again with offset=39791 for what follows._

12 All. Prem Singh Vs. The A.D.J. Gorakhpur & Ors.
909
----------
(2022) 12 ILRA 909
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 25479 of 2018

Prem Singh ...Petitioner
Versus
The A.D.J. Gorakhpur & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Adya Prasad Tewari, Sri Sheo Shankar
Tripathi

Counsel for the Respondents:
Sri Arvind Srivastava

Civil
Law
-
U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction )
Act, 1972-Section 21 (1)-Impugned order -
order of release -on ground of bona fide needAppeal -affirmation-Writ-landlady purchased the
demised premise and instituted proceedings
after three years-did not waited for period of six
months after service of notice upon tenant-to
vacate-if proceeding is against a sitting tenant
from time of the former landlord's ownership u/s
21-irrespective of the fact whether three years
moratorium u/s 21 has expired or notmandatory notice can be waived by the tenant-
belated plea about want of notice through an
amended ground in Appeal by tenant-rightly not
accepted by Appellate Authority.

Petition dismissed. (E-9)

List of Cases cited:

1 Smt. Kalpana Gulati & ors. Vs 8th Addl. D.J.
Allahabad & ors., (1999) 2 AWC 1656

2 Izhaar Ali & anr. Vs Prescribed Authority/
J.S.C.C., Sitapur & ors., (2014) 107 ALR 88

3 Martin & Harris Ltd. Vs VIth Additional Distt.
Judge & ors., (1998) 1 SCC 732

4 Anwar Hasan Khan Vs Mohd. Shafi & ors.,
(2001) 8 SCC 540

5. Nirbhai Kumar Vs Maya Devi & ors., (2009) 5
SCC 399
(Delivered by Hon'ble J.J. Munir, J.)

This writ petition has been filed by
Prem
Singh,
now
deceased
and
represented by his heirs and LRs, assailing
two orders of release, passed under
Section 21(1)(a) of The Uttar Pradesh
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (U.P. Act
No. 13 of 1972) (for short, ''the Act'),
relating to two distinct tenements in House
No. C/105/119, Tehsil Sadar, District
Gorakhpur. The orders of release passed
separately by the Prescribed Authority
relating to both the tenements in House
No. 105/119 (supra), for short, 'the house
in question', have been affirmed in two
separate
appeals
by
the
Appellate
Authority, under Section 22 of the Act,
both the appeals being preferred by Prem
Singh.

2. The facts leading to this writ
petition are these: Smt. Uma Shukla,
mentioned in the cause title of the writ
petition as Smt. Uma Devi Shukla, wife of
Basant Shukla, instituted two separate
proceedings under Section 21(1)(a) of the
Act
against
two
different
tenants,
occupying different parts of the house in
question. P.A. Case No. 37 of 2013 was
instituted by Smt. Uma Shukla (for short,
'the landlady') against Smt. Prabhawati
Devi widow of the late Seeta, Shrawan and
Gopal, both sons of the late Seeta, seeking
release of the part of the house in question
910 INDIAN LAW REPORTS ALLAHABAD SERIES
in their tenancy, on the ground of her bona
fide need.

3. The tenement, that Smt. Prabhawati
and her sons held, is described at the foot
of the application giving rise to P.A. Case
No. 37 of 2013. The boundaries given at
the foot of the application show the
tenement in the occupation of Smt.
Prabhawati and her sons as that portion of
the house in question, which was located to
the east of the part of the said house that
Prem Singh occupies, and has well defined
boundaries,
discernible
from
the
application under reference.

4. Similarly, the other application for
release that was instituted against Prem
Singh, also on the ground of bona fide
need, by the landlady, describes the
tenement in his occupation with reference
to its boundaries detailed at the foot of the
application, registered on the file of the
Prescribed Authority as P.A. Case No. 38 of
2013. The tenement in the occupation of
Prem Singh is also shown as part of the
house in question with its own distinct and
different boundaries, as already mentioned.

5. The landlady, thus, came up with a
case against the two tenants, to wit, Smt.
Prabhawati Devi and her sons being one
and Prem Singh the other, showing them to
be the occupants of two distinct tenements,
both part of the house in question, but with
their distinct and well defined identities.
Looking to the course of action that
proceedings
arising
out of
the
two
applications for release took, it would be
apposite to dispose of one part of the
objection that Prem Singh has raised
against the release order first, before
considering
the
others
that
involve
conventional issues arising in proceedings
under Section 21(1)(a) of the Act, between
the landlord and tenant. This course of
action is necessitated by the rather
ingenuous stand taken by Prem Singh after
the Prescribed Authority had passed the
order of release relating to the demised
premises, subject matter of P.A. Case No.
37 of 2013, founded on compromise
between the landlady and the tenants in that
case, that is to say, Smt. Prabhawati and her
sons.

6. Since both the release orders were
passed by the Prescribed Authority together
in terms of a common judgment and order,
Prem Singh, the tenant in P.A. Case No. 38
of 2013 carried an appeal against the
release order passed in P.A. Case No. 37 of
2013, also. A look at the proceedings in
P.A. Case No. 37 of 2013 brought by the
landlady against Smt. Prabhawati Devi and
her sons would show that the parties in that
case filed a memorandum of compromise,
bearing Paper No. 26-Ga, in terms of which
the tenant in the said case agreed to deliver
possession of the demised premises, subject
matter of proceedings to the landlady. The
said compromise was verified by the Court.

7.

After
verification
of
the
compromise,
Prem
Singh
moved
an
application before the Prescribed Authority
in P.A. Case No. 37 of 2017, which had
nothing to do with him on the face of the
proceedings, seeking impleadment. The
impleadment was granted on 15.09.2015 by
the Prescribed Authority. Prem Singh then
filed objections to the compromise, already
verified,
bearing
Paper
No.
32-Ga,
supported by an affidavit dated 18.12.2014.
The
Prescribed
Authority,
however,
proceeded to decide P.A. Case No. 37 of
2013 on the basis of compromise between
parties to that case, that is to say, the
landlady and the tenant, against whom
those proceedings were brought and
12 All. Prem Singh Vs. The A.D.J. Gorakhpur & Ors.
911
granted release in terms of a judgment
passed on compromise, scripted together in
a single document, also carrying the
judgment and order dated 15.04.2017
passed in P.A. Case No. 38 of 2013 against
Prem Singh, the tenant in the other part of
the premises.

8. An appeal was filed from the order
passed in P.A. Case No. 37 of 2013 as well,
by Prem Singh with a case that the
compromise was fraudulent proceeding and
he was the tenant of the other part of the
house in question, falsely shown to be in
the occupation of Smt. Prabhawati and her
sons by the landlady. The compromise was
assailed as an outcome of fraud and the
order of release a nullity, that could not be
enforced against Prem Singh. Prem Singh,
thus, in effect said that he was the tenant in
the part of the house in question, that was
subject matter of P.A. Case No. 37 of 2013.
Smt. Prabhawati and her sons were merely
parties, who were put up as sham to obtain
a release order against him for one part of
the demised premises that he also had in his
tenancy occupation.

9. The Appellate Court did not accept
Prem Singh's contention as aforesaid for
the reason that was dealt with by the
Appellate Authority, after the learned Judge
had disposed of the issues regarding bona
fide need and comparative hardship against
Prem Singh, in agreement with the
Prescribed
Authority.
The
appellate
Authority, therefore, reasoned that even if
Prem Singh were to be accepted as a tenant
in the other part of the house in question,
regarding which proceedings in P.A. Case
No. 37 of 2013 were decided in terms of
the compromise between the landlady and
Smt. Prabhawati Devi, it would make no
difference because the release order in that
case too would be upheld; the part or extent
of the accommodation in Prem Singh's
tenancy being what it was shown in P.A.
Case No. 38 of 2013 filed against him or
also that accommodation, which was made
subject matter of proceedings by the
landlady in P.A. Case No. 37 of 2013.

10. This Court upon a consideration
of the matter is minded to think that the
objection that Prem Singh came up with is
indeed specious. He did not make any
move to seek impleadment in Case No. 37
of 2013 until Smt. Prabhawati and her sons,
who were the tenants, against whom the
said proceedings were instituted, decided to
compromise with the landlady and give up
possession of the premises, subject matter
of the said case. Rather, as it appears, after
impleadment in P.A. Case No. 37 of 2013
and objections to the compromise, Prem
Singh did not press his objections before
the Prescribed Authority questioning the
compromise or led evidence in support of
his case to show that, in fact, it was he
(Prem Singh), who was the tenant of the
premises, subject matter of P.A. Case No.
37 of 2013 and not Smt. Prabhawati Devi
and her sons. This is the inescapable
conclusion from the order passed by the
Prescribed Authority, who has said nothing
about Prem Singh's case in challenge to the
compromise, though Prem Singh was a
party to P.A. Case No. 37 of 2013. Both the
cases also appear to have been heard
together.

11. If Prem Singh had come up with
evidence to support his case that he was
indeed the tenant in the demised premises,
part of the house in question and subject
matter of P.A. Case No. 37 of 2013, the
Prescribed Authority would have dealt with
the challenge and decide it one way or the
other. In the event, Prem Singh did lead
evidence in support of the case that he was
912 INDIAN LAW REPORTS ALLAHABAD SERIES
the tenant in the demised premises, subject
matter of P.A. Case No. 37 of 2013 and that
the proceedings against Smt. Prabhawati
and the compromise were fraudulent,
which the Prescribed Authority did not
decide, Prem Singh ought to have filed for
review inviting the Prescribed Authority's
attention to the case that he had set up
through his objections and the evidence
that he led to support it. Nothing of the
kind was done by Prem Singh before the
Prescribed Authority, which may lend
support to the case that Prem Singh, after
his impleadment in P.A. Case No. 37 of
2013 and objections to the compromise
entered into between the landlady on one
hand and Smt. Prabhawati and her sons on
the other, took steps to establish his rights
to the demised shop, subject matter of the
aforesaid case.

12. The Appellate Authority also has
not noticed any evidence led by Prem
Singh to establish that he was indeed the
tenant in the demised premises, subject
matter of P.A. Case No. 37 of 2013 and that
the compromise was indeed a sham. The
Appellate Authority refused to accept Prem
Singh's case on different grounds, which
have already been noticed hereinabove.

13. Before this Court also, there is not
the slightest evidence annexed to the writ
petition that might have formed part of the
record to establish that Prem Singh was the
tenant of the demised premises, subject
matter of P.A. Case No. 37 of 2013 or that
the compromise filed in that case inter
partes was indeed a sham. The challenge,
therefore, raised by Prem Singh to the
release order passed in P.A. Case No. 37 of
2013 is absolutely without substance. The
orders impugned, insofar as these dispose
of P.A. Case No. 37 of 2013 and Rent
Appeal No. 8 of 2017, arising from the
release order passed in the said case do not
merit interference.

14. This confronts the Court with the
proceedings arising out of P.A. Case No. 38
of 2013, where Prem Singh is admittedly
the tenant in the demised premises, part of
the house in question, subject matter of the
proceedings for release under Section
21(1)(a) of the Act.

15. As would appear from the facts
relevant here, P.A. Case No. 38 of 2013
was instituted by the landlady against Prem
Singh with allegations that she is the owner
and landlady of the demised premises, part
of the house in question, as detailed at the
foot of the application. The demised
premises were purchased by the landlady
from its former owners and landlords,
Amrit Singh and Bhanu Pratap vide
registered sale deed dated 20.05.2010. It is
landlady's case that her vendors inherited
the demised premises from their mother,
Smt. Amrawati Devi widow of the late
Yogendra Singh, who died on 05.02.2003.
Prem Singh was in occupation of the
demised shop as the tenant since the time
of Smt. Amrawati Devi. Upon her demise,
the title devolved upon her sons, Amrit
Singh and Bhanu Pratap, who stepped into
Smt. Amrawati Devi's shoes. Amrit Singh
and Bhanu Pratap on one hand and Prem
Singh on the other, therefore, stood in the
relationship of landlord and tenant. Prem
Singh would pay rent of Rs.50/- to the
previous owner and landlady, Amrawati
Devi and after her, to her successors and
heirs, Amrit Singh and Bhanu Pratap at the
same rate. The landlady purchased the
demised premises vide registered sale deed
dated 20.05.2010 for her personal need for
accommodation
and gave
information
orally to Prem Singh on the following day
i.e. 21.05.2010.
12 All. Prem Singh Vs. The A.D.J. Gorakhpur & Ors.
913

16. It is the landlady's further case
that after intimating Prem Singh on
21.05.2010 about the acquisition of title by
her relating to the demised premises, she
offered to accept the rent of Rs.50/- payable
by Prem Singh. Prem Singh, despite
demand and information about the sale
deed in the landlady's favour, did not remit
rent to her, though a period of one month
expired when rent, reckoned from the date
of the sale deed, fell due. The landlady's
name in accordance with the registered sale
deed dated 20.05.2010, has been mutated in
the house tax records of the Nagar Nigam
as the owner of the demised premises. The
landlady is depositing the house tax and
water tax on the basis of the demands
raised by the Nagar Nigam. Prem Singh is
well aware of the fact that the landlady has
purchased the demised premises (including
the rest of the house in question) in order to
satisfy her requirements for a residence,
inasmuch as the landlady does not own in
the city of Gorakhpur or in the rural areas
of the District any house or open piece of
land.

17. The landlady's husband has an
ancestral house, located in the commercial
area at Reti Chowk, Main Road, Urdu
Bazar. The area of location of the house last
mentioned is entirely commercial, which
cannot be utilized by the landlady or the
members of her family for the purpose of
their residence. Also, the ancestral house,
that the landlady's husband has a share in,
is the subject of an ongoing litigation
between the landlady's husband and his
sister-in-law (Bhabhi) Nirmla Shukla. The
landlady's husband carries on his business
of manufacturing drinking water in a part
of his ancestral house under the name and
style of Akanksha Drinking Water. This
makes the said house not at all available for
the landlady or her family to live in.

18. The landlady stays in a rented
accommodation, along with her family,
belonging to the owner of Gokul Mishthan,
Anil Kumar Gupta, situate at Mohalla
Hasanganj, Lal Diggi at a monthly rent of
Rs.8000/-. The rented accommodation,
wherein the landlady along with her family
stays is located on the first floor. It has two
rooms, a kitchen, a bathroom and a lobby.
The landlady's family comprises besides
herself, her husband and two children, a
daughter Km. Shipra aged about 24 years
and a son Shashank Shukla aged about 22
years, a student of M.B.A. The rented
accommodation is used by the landlady in
the manner that her two children, who are
studying, occupy the two rooms available,
whereas the landlady and her husband stay
in the lobby. There is no other room in the
rented accommodation, where the landlady
and her husband can live nor is there a
drawing room where they can entertain
guests. The house in question, including the
demised premises, was purchased by the
landlady, because it is located in a
residential area and close by to the
commercial area.

19. It is also the landlady's case that
she and her husband have gathered
information
that
Prem
Singh
has
immovable property at several places. The
demised premises are part of the old house
with a tile-worked roof. Prem Singh is
planning, according to the landlady's
information, in the near future to vacate the
demised premises and move to his own
house. This fact was conveyed to the
landlady and her husband by her vendor as
well. On further inquiries, the landlady
discovered that Prem Singh has two
residential plots located within the Nagar
Nigam
area
at
Mohalla
Mahadeo
Jharkhandi, Ward No. 1. These plots stand
in the name of members of his family. One
914 INDIAN LAW REPORTS ALLAHABAD SERIES
of these plots has had construction of a
house up to the plinth level. The complete
location and description of these two plots
has been pleaded by the landlady. It is also
said that Prem Singh is a native of Tehsil
Bansgaon, an old resident and a Zamindar,
who has in his native village big houses,
groves and fields, which are an index of his
high
economic
status.
The
landlady
requires the demised premises for her
personal occupation and that of her family
members, so as to solve their problem of
short accommodation. The landlady has to
shunt about places in search of rented
accommodation and spend a hafty sum of
money on rent. In the event, the demised
premises are released, the crisis on account
of want of residential accommodation
would end for the landlady. Prem Singh has
three sons in his family and one of them
lives in Gorakhpur City. Two of Prem
Singh's sons stay with him and both are
economically independent. .

20. By contrast, the landlady's family
survives on her husband's income from
business. The landlady is a housewife, who
has no source of income of her own. The two
children and the landlady are, therefore,
dependent upon her husband. The shortage of
accommodation for the family is a big crisis
and, therefore, the landlady's need is bona
fide. It is pleaded that the landlady repeatedly
requested Prem Singh to vacate the demised
shop, but he did not. Upon expiry of the
statutory period for a transferee landlord to
bring an application for release under Section
21(1)(a) of the Act, the landlady demanded of
Prem Singh for the last time on 25.06.2013 to
vacate the demised premises, which he
refused. In consequence, the proceedings for
release were instituted.

21. Prem Singh filed a written
statement
in
answer
to
the
release
application. He took a stand that no
information was given to him about the sale
deed dated 20.05.2010 on 21.05.2010 by
the landlady, as alleged. Prem Singh also
asserted that for the demised premises, of
which boundaries he has disclosed at the
foot of his written statement, he went to
pay rent to Amrit Singh up to the month of
October, 2003, which Amrit Singh refused.
Therefore, Prem Singh was depositing rent
in Court through Misc. Case No. 21 of
2004 under Section 30(1) of the Act. There
are averments to the effect that the
landlady's house (which the landlady has
described her husband's ancestral house) is
in
two
parts.
There
are
co-sharers
occupying the same for residential purposes
on the first floor and carrying on a shop at
the ground floor. It is pleaded with
reference to named individuals, who are
residents in the locality in the immediate
neighbourhood of the landlady's house that
innumerable families are residing in the
area.

22. It is also Prem Singh's case that
the landlady's co-sharer Nirmla Shukla is
not engaged in any kind of litigation with
her husband. The landlady has in the house
under reference three rooms, a lavatory and
a bathroom, where here family can
comfortably live. She is not staying as a
tenant at Mohalla Hasanganj. There is also
a suit for injunction pending inter partes.
The plots of land, which are said to be
owned by Prem Singh, belong to Sudha
Sanjay Singh, that she has purchased out of
her Istridhan. It has nothing to do with
Prem Singh. The other plot too, Prem Singh
has no interest in. It is owned by Chhotey
Lal and Manti Devi. The tenant has
attempted to scout and secure another
accommodation on rent, but failed. The
tenant, therefore, has no other roof and
shelter within the city of Gorakhpur. In the
12 All. Prem Singh Vs. The A.D.J. Gorakhpur & Ors.
915
event, the release application were allowed,
he would be without a house. The tenant
would suffer greater hardship in the event
of release than what the landlady would
suffer in the event of refusal of the
application.

23. The parties have filed affidavits in
support of their respective cases and some
documents, details whereof are elaborately
listed in the judgments of the two
Authorities below. These need not be
recapitulated.

24. The Prescribed Authority framed
the following issues (translated into English
from Hindi):

(1) Whether the parties stand in the
relationship of landlady and tenant? If yes,
this P.A. Case is maintainable under
Section 21 of The Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972?

(2) Whether this P.A. Case has been
presented on the basis of a bona fide need?

(3) Whether allowing this P.A. Case
would result in greater hardship to the
opposite party in comparison to what the
applicant would suffer, if the application is
rejected?

25.

The
Prescribed
Authority
answered all the issues for the landlady and
against
the
tenant,
and,
accordingly,
allowed the release application giving rise
to P.A. Case No. 38 of 2013. The tenant
was ordered to vacate the demised premises
and deliver vacant possession within within
30 days of judgment. In event of default,
the landlady was given the right to recover
possession through process of Court.

26. Aggrieved by the judgment of the
Prescribed Authority, Rent Appeal No. 7 of
2017 was preferred by the tenant to the
District Judge of Gorakhpur.

27. It may be clarified here for the
sake of record that connected P.A. Case No.
37 of 2013, that had been brought by the
landlady
against
another
tenant
was
disposed of by the Prescribed Authority by
a common judgment, along with P.A. Case
No. 38 of 2013. But, unlike P.A. Case No.
38 of 2013, it was decided on the basis of
compromise between parties to that case. It
was also appealed by the tenant (Prem
Singh) alleging that the compromise
between the landlady and the tenant in P.A.
Case No. 37 of 2013 was fraudulent and to
his prejudice. It was the tenant, who was in
occupation of the premises, subject matter
of P.A. Case No. 37 of 2013, and not the
tenants, against whom that case was
instituted, compromised and disposed of.
The appeal from the aforesaid order being
Rent Appeal No. 8 of 2017 was also heard
along with the appeal preferred by the
tenant from the judgment in P.A. Case No.
38 of 2013. Rent Appeal No. 8 of 2017 was
dismissed by the Appellate Authority for
reasons that this Court has already
approved in the earlier part of this
judgment. As such, nothing more requires
to be said about the proceedings or
judgment in appeal relating to Rent Appeal
No. 8 of 2017.

28. The Appellate Authority, that is to
say,
the
District
Judge,
Gorakhpur
proceeded to formulate the following points
for determination (relating to Rent Appeal
No. 7 of 2017, translated into English from
Hindi):

(1) Whether the release application
instituted by the respondent/ landlady under
Section 21(1)(a) of U.P. Act No. 13 of 1972
is not maintainable?
916 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) Whether the respondent/ landlord
has a bona fide need for the house in
question?

(3) Comparative hardship in relation to
the house in question?

29. It must be recorded here that the
fourth point, that was formulated by the
Appellate Authority relates to Rent Appeal
No. 8 of 2017, arising out of P.A. Case No.
37 of 2013, which we have already
disposed of in the earlier part of this
judgment.

30. Heard Mr. Adya Prasad Tewari,
learned Counsel for the tenant and Mr.
Arvind Srivastava, learned Counsel for the
landlady. No one has appeared for Smt.
Prabhawati Devi, Shrawan and Gopal,
respondent nos. 4, 5 and 6.

31. It is argued by Mr. Adya Prasad
Tewari, learned Counsel for tenant on the
issue of maintainability of the proceedings for
release that the application by the landlady
under Section 21(1)(a) of the Act did not lie
for non-compliance with the first proviso to
Section 21. He submits that the first proviso
to Section 21 of the Act is mandatory in
nature. It postulates that a tenant, who is in
occupation of a building before another
purchases it from the former owner and
becomes the landlord, no application at the
instance of the new landlord under Clause (a)
of sub-Section (1) of Section 21 of the Act
can be entertained, until before the expiry of a
period of three years from the date of
purchase. In addition, the landlord is required
to serve a notice upon the tenant giving him/
her not less than six months' time to vacate,
before an application under Section 21(1)(a)
can be instituted.

32. The learned Counsel for the tenant
argues that the first proviso to Section 21 of
the Act is mandatory in nature, which
would be evident from the words therein to
the effect, ''no application shall be
entertained on the grounds, mentioned in
clause (a), unless a period of three years
has elapsed ...... and the landlord has given
a notice in that behalf to the tenant not less
than six months before such application,
.....'. Mr. Tewari submits that the words
predicate an exclusion of the Prescribed
Authority's jurisdiction to entertain an
application, either before the expiry of
three years from the date of purchase by a
new landlord, or before the expiry of six
months' notice, given for the purpose to the
tenant by such landlord.

33. The first proviso engrafts a rule of
ouster of jurisdiction for the period of time
and the period of notice specified. Unless
the period of time after purchase by a
successor-landlord has elapsed and also the
period of notice, which the landlord has to
serve upon the sitting tenant, who has been
in occupation before he purchased, the
Prescribed Authority has no jurisdiction to
act on an application made by the landlord.
It is submitted, therefore, that in the
absence of service of a notice under the
first proviso to Section 21, the application
for release instituted by the tenant is not
maintainable.

34. The learned Counsel for the tenant
points out that a reading of the application
for release makes it clear that the landlady
has not served a notice upon the tenant,
giving him six months' time to vacate
before the institution of proceedings. It is
pointed out that a reading of the application
shows that no notice in writing was ever
served upon the tenant and all that was
done was the pleading about an oral request
or demand to the tenant by the landlord to
vacate the demised premises.
12 All. Prem Singh Vs. The A.D.J. Gorakhpur & Ors.
917

35. The learned Counsel for the
landlady, on the other hand, urges that
service of notice by the landlady giving the
tenant six months to vacate, may be
mandatory, but the tenant has to plead the
bar at the earliest. A failure to plead the bar
of want of notice under the first proviso to
Section 21 of the Act, would amount to
waiver on the tenant's part and an estoppel
against him in the landlady's favour. It is
pointed out that in the written statement,
there is no plea by the tenant saying that the
proceedings for release brought by the
landlady are barred for want of the six
months' notice, envisaged under the first
proviso to Section 21 of the Act.

36. Upon hearing learned Counsel for
parties, this Court finds for a fact that the
tenant never raised a plea about the
application under Section 21(1)(a) of the
Act being premature for want of the six
months' notice envisaged under the first
proviso. It is for the said reason that the
Prescribed Authority has not at all dealt
with the said issue. Instead, the Prescribed
Authority has dealt with the issue of
relationship of landlord and tenant between
parties, which too was questioned by the
tenant.

37. The Prescribed Authority in
returning findings on Issue No. 1 has held
that the relationship of landlord and tenant
proved between parties, because the tenant
has acknowledged the landlady as the
transferee from his landlord. Apart from the
said finding, there is not a whisper in the
Prescribed Authority's judgment about the
issue of prematurity, because apparently the
tenant never raised it.

38. The Appellate Authority has noticed
and dealt with the plea for the first time and
remarked, like this Court finds, that in the
written statement the tenant never raised the
plea of the bar under the first proviso to
Section 21 of the Act. He has raised this plea,
according to the Appellate Authority for the
first time in appeal by seeking an amendment
to the grounds of appeal and adding Para
1(a). The Appellate Authority has also
recorded it for a fact, which has not been
disputed or demonstrably proved before this
Court to be contrary to record that the
landlady issued a notice to the tenant on
29.05.2013, that was served upon him on
30.05.2013. The proceedings under Section
21(1)(a) commenced on the application,
which is dated 06.07.2013. Apparently,
therefore, the period of six months did not
elapse, but the tenant never raised a plea
about prematurity of the release proceedings
before the Court of first instance. It was
raised for the first time before the Appellate
Authority after the proceedings had run their
full course before the Prescribed Authority
and culminated in the order of release
impugned.

39. The Appellate Authority has opined
that in the absence of a plea being raised
about prematurity of the release proceedings
before the Authority of first instance, the plea
is no longer open to the tenant to urge in
appeal as it would amount to approbation and
reprobation. It is further remarked that in case
the plea had been raised before the Authority
of first instance, it would be open to the
landlady to withdraw the application instead
of running through the entire course of
proceedings and institute the proceedings
afresh after expiry of the six months' period.
The Appellate Authority has, therefore, held
that it is a case where the tenant has waived
the plea of prematurity before the Prescribed
Authority.

40. In the opinion of this Court, the
Appellate Authoritiy's finding on the
918 INDIAN LAW REPORTS ALLAHABAD SERIES
question of maintainability of the release
proceedings is flawless and unassailable.
There is no quarrel about the fact that the
landlady purchased the demised premises
through the registered sale deed dated
20.05.2010 and instituted proceedings in
the month of July, 2013. Thus, the period of
three years had clearly elapsed after
purchase of the demised premises from its
former owner by the landlady when she
asserted her right to evict the tenant. It is
true that the landlady did not wait for the
period of six months after service of notice
upon the tenant to vacate the demised
premises, but it has to be seen whether that
renders the application premature. It is one
thing to say that the requirement of service
of six months' notice before proceedings
for release can be instituted is mandatory
under the first proviso to Section 21 of the
Act, and quite another to infer the
requirement as a rule of ouster, where the
Prescribed Authority's has no jurisdiction to
act before the expiry of the period of six
months, envisaged under the said proviso.

41. The rule under the first proviso to
Section 21 of the Act mandating six
months' notice by the landlord is a personal
right given to the tenant, that is in the
nature of a time period for facility and
convenience to relocate, finding alternative
accommodation before the new landlord
commences proceedings for release on the
ground of his bona fide need. The right to
six months' notice being a personal right
that the tenant enjoys can always be
waived. The waiver is certainly inferrable
from the inaction of the tenant in not
pleading the bar of want of six months'
notice at the earliest stage when the
proceedings
commenced
before
the
Prescribed Authority. A right or advantage,
that is given by law solely for the benefit
and protection of an individual, can be
waived unless it is in the nature of a bar to
protect a public right or public policy.

42. The bar to the commencement of
proceedings for release by a successor or
new landlord against an existing tenant that
the first proviso to Section 21 envisages, is
by no means a bar to action or so to speak
postponement of action for the period of
notice to serve public interest, protect a
public right or advance public policy. It is a
right given to protect nothing more than a
personal interest of the old tenant, who gets
a new landlord. This kind of a right,
providing for postponement of action for
the period of the mandatory notice of six
months, can certainly be waived by the
tenant. The distinction about the nature of
the bar or right for the protection of a
public interest, as distinguished from one
that the Statute provides to protect a purely
private or personal right or benefit, finds
eloquent statement about the principle in
Maxwell on The Interpretation of Statutes,
Twelfth Edition By P. St. J. Langan. In
Maxwell at Pages 328 to 329, the learned
Commentator exposits:

"Everyone has a right to waive and to
agree to waive the advantage of a law made
solely for the benefit and protection of the
individual in his private capacity, which
may be dispensed with without infringing
any public right or public policy. Cuilibet
licet renuntiare juri pro se introducto.

So a person may agree to waive the
benefit of the Limitation Act.

The trustees of a turnpike road may, in
demising the tolls, waive a statutory
requirement that the demise should be
signed by the sureties of the lessee.

A railway passenger may waive the
benefit of an enactment which entitles him
to carry with him so many pounds of
luggage, and he does so by taking a ticket
12 All. Prem Singh Vs. The A.D.J. Gorakhpur & Ors.
919
with the express condition that he shall
carry no luggage.70 The only person
intended to be benefited by such an
enactment is the passenger himself, and no
consideration of public policy is involved.

In Corporation of Toronto v. Russell,
the Judicial Committee held that where a
notice in writing of intention to purchase
compulsorily was required to be given to
the owner of lands, the provision being
entirely for his benefit, he might waive it.

The regulations governing the practice
and procedure of civil courts may in the
same way, when not going to the
jurisdiction, be waived by those for whose
protection they were intended."

43. The principle also finds eloquent
statement in Craies On Statute Law
Seventh Edition By S. G. G. Edgar at
Page 269:

"If the object of a statute is not one of
general policy, or if the thing which is
being done will benefit only a particular
person or class of persons, then the
conditions prescribed by the statute are not
con- sidered as being indispensable. This
rule is expressed by the maxim of law,
Quilibet potest renuntiare juri pro se
introducto. As a general rule, the conditions
imposed by statutes which authorise legal
pro-
ceedings
are
treated
as
being
indispensable to giving the court juris-
diction. But if it appears that the statutory
conditions were inserted by the legislature
simply for the security or benefit of the
parties to the action themselves, and that no
public
interests
are
involved,
such
conditions will not be considered as
indispensable, and either party may waive
them without affecting the jurisdiction of
the court. Where a statute deprives a person
of a legal remedy, but does not deny him a
cause of action (e.g. the Statute of Frauds
and its replacements 59 or a Statute of
Limitation), courts of justice, whether
under the specific rules of procedure or
under their general course of practice, treat
the right of the defendant to bar the remedy
as waived if he does not plead the statute
which bars it."It is evident," said Alderson
B., "that a party who has a benefit given
him by statute may waive it if he thinks
fit.""

44. The principle was considered by
this Court in Smt. Kalpana Gulati and
others v. 8th Addl. D.J. Allahabad and
others, (1999) 2 AWC 1656 and it was
held that the notice under the first proviso
to Section 21 of the Act, though mandatory,
can be waived by the tenant. In Smt.
Kalpana Gulati (supra), it was observed:

"10. Section 21(1)(a) of the Act
permits the landlord to file an application
for eviction of tenant from a building for
his personal need or for the need of his
family members. The first proviso has been
added to Section 21(1) of the Act to save
the tenants from unnecessary harassment [
The Relevant part of Section 21 is as
follows:--Section
21-Proceedings
for
release of building under occupation of
tenant. (1) The Prescribed Authority may,
on an application of the landlord in that
behalf, order the eviction of a tenant from
the building under tenancy or any specified
part thereof if it is satisfied that any of the
following grounds exists namely:--(a) that
the building is bonafide required either in
its existing form or after demolition and
new construction by the landlord for
occupation by himself or any member of
his family, or any person for whose benefit
it is held by him, either for residential
purposes or for purposes of any profession,
trade or calling, or where the landlord is the
trustee of a public charitable trust, for the
920 INDIAN LAW REPORTS ALLAHABAD SERIES
objects of the trust;Proviso: Provided that
where the building was in the occupation of
tenant since before its purchase by the
landlord, such purchase being made after
the commencement of this 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 notice 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 aforesaid
period of three years.] . It is for their
protection and benefit. The proviso says
that a purchaser of a premises can not file
an application under Section 21(1)(a) of the
Act unless three years have elapsed from
the date of purchase and the purchaser (the
new landlord) has given six months notice
to the tenant. It is true that the application
under Section 21(1)(a) of the Act can not
be allowed unless and until three years
have elapsed from the date of the purchase.
It is also true that six months notice is
mandatory. These are the rights given to the
tenant so that a premises may not be sold
merely for evicting him. These provisions
are for his benefit and are mandatory. But
like other rights can always be waived."

45. In Izhaar Ali and another v.
Prescribed Authority/ J.S.C.C., Sitapur
and others, (2014) 107 ALR 88, it was
observed:

"5. Supreme Court in Nirbhai Kumar's
case (supra) held that although Proviso to
section 21(1)(a) of U.P. Act No.