Dilip Gupta, J.

1. THE tenant has filed this petition for quashing the order dated 20th May, 2010 passed by the Prescribed Authority by which the application filed by the landlord under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act") for release of the shop in dispute has been allowed.

THE petitioner has also sought the quashing of the judgment and order dated 28th September, 2011 by which the Appeal filed by the tenant under Section 22 of the Act for setting aside the aforesaid order of the Prescribed Authority has been dismissed.

2. THE release application had been filed by the landlord with the averments that the shop was bona fide required by the landlord for running a Show-room of Readymade Garments. It was also stated that the landlord was likely to suffer greater hardship than the tenant.

A reply to the aforesaid application was filed by the tenant with the averment that the need set up by the landlord was not bona fide; that the alleged sale deed on the basis of which the landlord claimed ownership, does not confer any title in favour of the landlord for the reason that it was undervalued and a Photostat copy had been filed.

The Prescribed Authority by the order dated 20th May, 2010 allowed the application filed by the landlord. It found that the relationship of landlord and tenant existed between the parties and that the landlord bona fide required the shop for doing his business. It also found that the landlord was likely to suffer greater hardship than the tenant.

3. THE Appeal field by the tenant was also dismissed by the judgment and order dated 28th September, 2011. THE Appellate Court confirmed the finding of the Prescribed Authority that the landlord and tenant relationship existed between the parties. It also rejected the contention of the tenant that the application was defective as the co-landlord had not been impleaded.

THE Appellate Court also rejected the contention of the tenant that the application filed by the landlord under Section 21(1)(a) of the Act was not maintainable as six months notice as contemplated under the first proviso to the said Section had not been given for the reason that the tenant had waived this requirement.

THE Appellate Court also rejected the application filed by the tenant for making an amendment in the written statement that six months notice had not been given.

THE Appellate Court also recorded a finding that the landlord bona fide required the shop in dispute for establishing himself in business and that the landlord was likely to suffer greater hardship than the tenant.

The first contention of the learned counsel for the petitioner is that the application filed by the landlord under Section 21(1)(a) of the Act was not maintainable inasmuch as the requirement of giving six months notice to the tenant after the landlord purchased the tenanted property had not been complied with.

4. IN order to appreciate the contention, it would be appropriate to refer to the first proviso to Section 21 which is as follows :

"21(1)(a)............... 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 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 acquisition 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 stated that in terms of the compromise decree rendered in Suit No. 447 of 1982 (Shri Lakshman Prasad and others v. Shri Ram Chandra and others), the property mentioned in Schedule "A fell in the share of Lakshman Prasad and others which included five shops situated at Chaumukha Pul, Moradabad and tenanted by Ram Rakshpal (two shops), Brahmanand Gupta (two shops) and Om Prakash (one shop).

The respondents Piyush Agarwal and Rachna Agarwal purchased part of the aforesaid property including the disputed shop from Lakshman Prasad by registered sale deeds dated 3rd April, 2001 and 5th April, 2001. It is asserted by the learned counsel for the petitioner that though the application under Section 21(1)(a) of the Act was filed after three years on 16th March, 2005 but six months notice as was required to be given by the landlord to the tenant under the first proviso to Section 21 of the Act had not been given. It is the contention of the learned counsel for the petitioner that the service of such notice is mandatory and since such notice was not given, the application filed under Section 21(1)(a) of the Act was liable to be rejected.

5. THE Appellate Court has rejected this plea for the reason that the tenant had waived the requirement of service of such notice as such a plea was not taken by the tenant in the written statement filed by him to the application filed by the landlord under Section 21(1)(a) of the Act.

6. LEARNED counsel for the petitioner has placed reliance upon the decision of the Supreme Court in Martin & Harris Ltd. v. VIth Additional District Judge and others, 1998 (1) SCC 732 [LQ/SC/1997/1664] and Nirbhai Kumar v. Maya Devi and others, 2009 (1) ARC 767 [LQ/SC/2009/654] and has contended that the requirement of service of six months notice is mandatory and cannot be waived. It is also his contention that the Appellate Court committed an illegality in rejecting the application filed by the petitioner for making an amendment in the written statement to add this plea. According to him, such a plea could have been taken at any stage of the proceedings since it goes to the root of the matter.

Sri K.K. Arora, learned counsel appearing for the respondent-landlord has, however, submitted that the requirement of service of six months notice could be waived by the tenant as has been held by the Supreme Court in Martin & Harris (supra). In Martin & Harris (supra) it was observed:

"It is not possible to agree with the contention of the 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 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 give the tenants concerned a locus poenitentiae to avail of it or not. It is easy to visualise that proceedings under 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 of 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 get clashed and call for adjudication by the prescribed 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 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."

It needs to be noticed that the Supreme Court in Anwar Hasan Khan v. Mohd. Shaft and others, 2001(8) SCC 540, also interpreted the first proviso to Section 21 of the Act and, therefore, the matter was referred to by a Bench of three Judges in Nirbhai Kumar (supra) and after referring to the decision of the Supreme Court in Martin and Harris and Anwar Hasan (supra), the Supreme Court in Nirbhai Kumar observed as follows:

"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 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 expiry of six months notice, did not think it fit to pursue that 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 only on merits and only as an afterthought at the stage of 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 being premature having been filed before the expiry of six months from the date of the suit notice."

7. THE Supreme Court in Martin & Harris Ltd. (supra) held that six months breathing time is given to the tenant after service of notice in order to get an alternative accommodation and this protection to the tenant can be waived by him. In Anwar Hasan Khan (supra) the Supreme Court held that the view taken in Martin & Harris Ltd. (supra) was the correct view.

Such being the position, when the tenant had not taken the plea about notice in the written statement, it can be said that he had waived it. It also needs to be pointed out that in case such a plea was taken by the tenant at that time, the landlord could have withdrawn the application filed by him and given six months notice to the tenant and thereafter filed the application under Section 21(1)(a) of the Act.

8. IT is also the submission of the learned counsel for the petitioner that the property which had been purchased by Piyush Kumar Agarwal and his wife Rachna Agarwal by virtue of sale deeds dated 3rd April, 2001 and 5th April, 2001 does not include the tenanted property which is a shop since it refers to only a residential portion. He, therefore, submits that there was no contract of tenancy between the petitioner and the respondents.

This contention of the learned counsel for the petitioner cannot be accepted. From a bare perusal of the compromise decree, it is clear that the shops including the shop in which the petitioner is the tenant fell in the share of Lakshman Prasad and Lakshman Prasad had executed the sale deed. Even in paragraph No. 24 of the writ petition, it has been stated by the petitioner that admittedly Lakshman Prasad became the absolute owner and landlord of the entire ground floor including the disputed shop. The Prescribed Authority as well as the Appellate Court have, from the documents available on the record, clearly held that the relationship of landlord and tenant existed between the parties.

In such circumstances, the findings recorded by the Prescribed Authority as well as the Appellate Court cannot be said to be perverse so as to call for any interference under Article 226 of the Constitution. The writ petition is, therefore, liable to be dismissed.

9. AT this stage, learned counsel for the petitioner submitted that some time may be given to the tenant to vacate the premises in, dispute.

10. LEARNED counsel for the landlord has stated that the landlord has no objection to some reasonable time being granted.

The tenant is, accordingly, granted time upto 30th April, 2012 to handover the peaceful possession of the shop to the landlord subject to the tenant giving an undertaking within two weeks from today before the Prescribed Authority to the following effect:

1. That the tenant shall handover peaceful possession of the shop to the landlord on or before the 30th April, 2012.

2. That the tenant shall pay damages at the rate of Rs.500/- per month up to the date he hands-over the possession of the shop to the landlord.

3. That the tenant shall not induct any other person in the shop. It is made clear that in the event the tenant fails to give the undertaking within the aforesaid period or fails to comply with any of the terms of the undertaking, it will be open to the landlord to get the decree executed.

The writ petition is, accordingly, dismissed with the aforesaid observations.