1. 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 :-

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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 the tenant prior to the initiation of the proceedings under Section 21 (1) (a) of Act No. 13 of 1972, by filing the same on 31st July, 2009. The second part of the proviso makes it mandatory, that before expressing an intention to file an application for release, the law has contemplated a mandatory providing of six months notice to be given to the tenant, in order to caution him about the landlord’s intention to get the release of the tenement, in question, so that the tenant may get sufficient time to put his house in condition.

7. In the case at hand, there was no such six months notice given by the landlord under the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, giving an intimation about the intention of the landlord to file a release application for releasing of the tenement, in question, to meet his bona fide need.

8. In order to meet up this argument, the learned counsel for the petitioner, had drawn the attention of this Court to the notice, which he has appended as Annexure-6 to the Writ Petition, which he reads it as to be a notice under the first proviso to Section 21 (1) (a) of Act No. 13 of 1972. In fact, this would not be a notice under the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, owing to the pleadings raised by him in para 2 of the release application, because the basic intention behind the aforesaid notice was for claiming of arrears of rent and eviction due to the alleged default committed by the tenant, as it was reflected in para 5 of the notice, and consequential filing of an SCC Suit, which is shown to be pending in para 2 of release application.

9. The contention of the learned counsel for the petitioner, that this notice would be a notice to be read under the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, is absolutely a misnomer, and in contravention to the law, because for the purposes of sustaining a proceeding under Section 21 (1) (a) of Act No. 13 of 1972, at the behest of the landlord, he has to plead, that he has complied with the conditions, which are mandatory to be adhered to by the landlord prior to the initiation of the proceedings under Section 21 (1) (a) of Act No. 13 of 1972.

10. The said step of compliance of the proviso to Section 21 (1) (a) of Act No. 13 of 1972, has not been established by the landlord at the stage, when the release application itself was filed, and hence this Court is of the opinion, that if the notice dated 9th February, 2009, is read in harmony with the pleadings raised in the release application, since it expresses an intention of the landlord to initiate a proceeding under Section 15 of the Provincial Small Cause Courts Act, and that is why, it would be read as to be a notice for arrears of rent and eviction of the tenant from the tenement, in question, and that further stands substantiated from the pleadings of the landlord itself, as made in the release application.

11. The learned counsel for the respondent / tenant has argued, that in reply to the pleadings raised in the release application, he has filed a written statement, and in the written statement, he has taken a plea that the release application was not maintainable.

12. The question would be, that to what extent the interpretation would be given to the said pleadings about the sustainability of the release application. What is important herein is, that the said plea of the alleged notice, which the petitioner has argued before this Court today that it happens to be a notice under the first proviso to Section 21 (1) (a) of the Act No. 13 of 1972, is absolutely unsustainable for the reason being, that even for the time being, it is presumed that it was a notice under the first provision to Section 21 (1) (a) of Act No. 13 of 1972, it was a burden, which was supposed to be discharged by the landlord at the stage when the release application itself was being considered by the Prescribed Authority to substantiate his plea, that he has complied with the conditions as provided under the first provision to Section 21 (1) (a) of Act No. 13 of 1972, and no effort could be said at all to have been made by the landlord to establish the aforesaid fact, for the reason being, that no such notice, which has been placed on record in the Writ Petition as Annexure-6 was ever placed before the Court of learned Prescribed Authority at the stage when the Prescribed Authority was dealing with the application under Section 21 (1) (a) of Act No. 13 of 1972, and in that eventuality, there was no occasion for the Prescribed Authority to record any finding pertaining to the notice dated 9th February, 2009, or its effect, or any other such alleged notice, which has ever been issued by the landlord in compliance of the first proviso to Section 21 (1) (a) of Act No. 13 of 1972.

13. The argument of the learned counsel for the respondent is, that the notice, which was said to have been issued under the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, as contended by the landlord during the course of argument of the Writ Petition, in fact, was never a document, which was placed on record as an evidence to be considered before the Prescribed Authority, which could have been considered, and a finding qua the said notice could have been recorded by the learned Trial Court. The said document, i.e., the notice of 9th February, 2009, was placed before the Court for the first time at an appellate stage, by virtue of being paper No.55-Ka/4 and 55-Ka/7.

14. The question would be, when the said document has been placed on record for the first time at an appellate stage, and the plea of maintainability of the release application was not chosen to be pressed by the landlord, when the release application itself was filed by establishing the fact, that he has issued the notices under the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, then the alleged plea of waiver sought to be argued by the learned counsel for the landlord would not be acceptable for the reason being, that when he himself was treating the notice of 9th February, 2009, as to be a notice under the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, and that has been aptly replied to by the learned counsel for the respondent, that it was rather a notice under Section 106 of the Transfer of Property Act. There was no occasion for the tenant to reply to the contents of the notice of 9th February, 2009, when it was not a part of an evidence before the Court of learned Prescribed Authority, and when it was also not a part of the pleading made by the landlord, that he has aptly complied with the conditions of the first provision to Section 21 (1) (a) of Act No. 13 of 1972.

15. In that eventuality, when the landlord himself has not complied with the conditions of the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, of giving six months mandatory prior notice for filing of the release application, which is a mandate as answered by the Hon’ble Apex Court in a judgment as reported in (1998) 1 SCC 732, [LQ/SC/1997/1664] Martin & Harris Ltd. Vs. VIth Addl. District Judge and others, where, the Hon’ble Apex Court has drawn a distinction as to what will be the impact of use of the two words “entertainment and institution”. In para 5 of the said judgment, as it was elaborated before the Hon’ble Apex Court, it was observed that the entertainment of an application under Section 21 (1) (a) of Act No. 13 of 1972, would be only when the application upon being filed prior to the cut-off period of three years has had to be ultimately decided after three years of the purchase. Relevant para 5 of the judgment is extracted hereunder :-

“5. Learned senior counsel Shri P.P. Rao, appearing on behalf of the appellant submitted in support of the appeal that the High Court has patently erred in law in taking the view that respondentlandlord's application under Section 21(1)(a) was maintainable. He submitted, placing reliance on various decisions of this Court to which we will make a reference hereinafter, that the suit as filed before expire of the period of six months from the date of the service of the suit notice was clearly not maintainable and that as the said provisions was for the benefit of the suppressed class of tenants it was in public interest and objection regarding the same could not be waived by the appellant as wrongly held by the High Court. It was also contended that the application for possession under Section 21(1)(a) of the Act was not maintainable as it was filed within three years of the date of purchase of the property by the respondent- landlord and consequently the prescribed authority had no jurisdiction to entertain such an application from the very inception. It was submitted that the term `entertain' as employed by the first proviso to Section 21(1)(a) of the Act was synonymous with the word `institute' and in any case at the time the court took cognisance of the suit for possession by issuing notice to the appellant it could be said that the Court has entertained the said proceedings and such entertaining of the proceedings was clearly barred by the aforesaid provision of the Act and consequently the decree for possession as passed by the Trial Court and confirmed by the First Appellate Court and the High Court was a nullity. It was also contended that because of the subsequent event brought to the notice of the High Court to the effect that respondent was staying with his wife in the adjoining part of the building where the suit premises was situated and as the said property jointly belonged to respondent's wife and her brother it could not be said that the respondent-landlord had any felt need for occupying the suit premises and his need for the suit premises, if any, had come to an end.”

16. The term “entertainment” here would mean, that allowing of an application under Section 21 (1) (a) of Act No. 13 of 1972. Hence, the word “entertainment” cannot be used as to be synonymous to the word “institution”. Institution means, that it is the first stage of giving a legal birth to a proceeding. The proceedings under Section 21 (1) (a) of Act No. 13 of 1972, could have been given birth to only if six month notice was given to the tenant prior to filing of the release application and, that is what has been observed in para 6 of the judgment of the Hon’ble Apex Court, and which has been accordingly decided while answering the question No.2, as it has been formulated by the Hon’ble Apex Court in para 7; and while giving reply on the same, the Court has observed that the term “institution” means the filing of a release application and that is required to be complied with in accordance with the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, after giving a six month prior notice. The relevant observation has been made by the Hon’ble Apex Court in para 8 of the judgment of Martin & Harris Ltd. (Supra), which is extracted hereunder :-

“8. In order to appreciate the controversy centering round this contention it is necessary to have a look at the relevant statutory provisions. Section 21(1) with its relevant clauses and the provisos reads as under:

"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 it is satisfied that any of the following grounds exists namely-

(a) that the building is bona fide 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 objects of the trust.

(b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction.

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 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:

Provided further that if any application under clause (a) is made in respect of any building let out, exclusively for non- residential purposes, the prescribed authority while making the order of eviction shall, after considering all relevant facts of the case, award against the landlord to the lenient an amount not exceeding two years' rent as compensation and may, subject to rules, impose such other conditions as it thinks fit:

Provided also that no application under clause (a) shall be entertained-

(i) ... ....

(ii) ......

(iii) in the case of any residential building, against any tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925) has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act, or where he has died by enemy action while so serving then against his heirs:

Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed.

Explanation - In the case of a residential building:-

(i) ................ ...........

(ii)........ ................

(iii) Where the landlord of any building is-

(1) a serving or retired Indian Soldier as defined in the Indian Soldiers (Litigation ) Act, 1925 (IV of 1925), and such building was let out at any time before his retirement, or

(2)

and such landlord needs such building for occupation by himself or the members, of his family for residential purposes, then his representation that he needs the building for residential purposes for himself or the members of his family shall be deemed sufficient for the purposes of clause (a), and where such landlord owns more than one building this provision shall apply in respect of one building only."

As the respondents application was also based on another ground under Sub-Section (1-A) of Section 21 of the Act it will be necessary to note the said provision also at his stage. It reads as under:

" 21(1-A). Notwithstanding any thing contained in Section 2, the prescribed authority shall, on the application of a landlord in that behalf, order the eviction of a landlord in that behalf, order the eviction of a tenant from any building under tenancy, if it is satisfied that the landlord so such building was in occupation of a public building for residential purposes which he had to vacate on account of the cessation of his employment:

Provided that an application under this subsection may also be given by a landlord in occupation of such public building at any time within a period of one year before the expected date of cessation of his employment. But the order of eviction on such application shall take effect only on the date of his actual cessation."

A mere look at the aforesaid provision of the first proviso to Section 21(1) of the Act shows that no application filed by a landlord is to be entertained by the prescribed authority on grounds mentioned in clause (a) unless a period of three years has expired since the date of purchase of the property by the landlord when the building which is purchased is having a sitting tenant. It is not in dispute between the parties that the appellant was a sitting tenant since 1966 in the said building when it was purchased by respondent Landlord on 30th June 1985, It is, of course, true that respondent landlord moved an application for possession, against the appellant both under Section 21(1) (a) of the Act and also under Section 21(1-a) of the Act. However, so far as the ground under Section 21(1)(a) of the Act is concerned the application was filed before the expiry of three years from the date of such purchase. It was in fact filed within seven months from the date of purchase of the premises. The moot question is whether the very filing of such application was barred by the provisions of the said proviso. It must be kept in view that the proviso nowhere lays down that no application on the grounds mentioned in clause (a) of Section 21(1) could be 'instituted' within a period of three years from the date of purchase. On the contrary, the proviso lays down that such application on the said grounds cannot be 'entertained' by the authority before the expiry of the period. Consequently it is not possible to agree with the extreme contention canvassed by the learned senior counsel for the appellant that such an application could not have been filed at all within the said period of three years. Learned senior counsel for the appellant Shri Rao in this connection invited out attention to a decision of this Court in the case of Anandilal Bhanwarlal and another v. Smt. Kasturi Devi Ganeriwala and another [(1985) 1 SCC 442] [LQ/SC/1984/329] . In the said decision this Court was concerned with the interpretation of Section 13(3-A) of the West Bengal premises Tenancy Act. 1956. The said provision reads as under:

"13. (3-A) Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of t he grounds mentioned in clause (f) or clause (ff) of sub- section (1) shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest....

As in that case the very 'institution' of suit for recovery of possession was barred for a period of three years form the date of acquisition of interest of the landlord in such premises this Court took the view that the decree for possession passed in the face of such statutory prohibition was illegal. As the proviso to Section 21(1) of the Act in the present case is not so worded the said decision cannot be of any avail to learned senior counsel for the appellant. However he submitted that the word 'entertain' should be construed as being synonymous with the word 'institute'. It is difficult to agree. The statutory scheme of Section 21(1) contra-indicates such a contention, sub-Section (1) of Section 21 lays down that '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.....' Section 21(1) deals with grounds mentioned not only in clause (a) but also in clause (b) The proviso to Section 21(1) bars entertainment of the application only on the grounds mentioned in clause (a) thereof, It is easy to visualise that an application for possession may be filed by the landlord not only invoking grounds mentioned in clause (a) of Section 21(1) but even other grounds mentioned in that sub-section. Therefore, the stage at which the court has to consider whether grounds mentioned in clause (a) are made out be the plaintiff or not will be reached when the Court takes up the application for consideration on merits. It has to be kept in view that applications for possession filed under Section 21(1) of the Act are not placed for admission before the prescribed authority. Once they are filed they are to be processed for being decided on merits after issuing notices to the parties concerned. Therefore, when the application reaches final hearing on merits the authority has to shift the grounds on which the application is based and if it finds that the application is based amongst others on the grounds mentioned in clause (a)) it has to ascertain whether three years' period has expired since the day of the purchase of the said property by the plaintiff- landlord and if the period of three years is found to have expired then the grounds mentioned in clause (a) would become alive for consideration of the authority. If not, said grounds would not be entertained for consideration. Thus the word 'entertain' mentioned in the first proviso to Section 21 (1) in connection with grounds mentioned in clause (a) would necessarily mean entertaining the ground for consideration for the purpose of adjudication on merits and not at any stage prior thereto as tried to be submitted by learned senior counsel, Shri Rao, for the appellant. Neither at the stage at which the application is filed in the office of the authority nor at the stage when summons is issued to the tenant the question of entertaining such application by the prescribed authority would arise for consideration. This conclusion also flows from the statutory scheme discernible from the third proviso to section 21(1) of the Act. It is seen that the said proviso uses the similar terminology to the effect that such application under Section 21(1)(a) shall not be entertained under contingencies contemplated by various sub-clauses of the said proviso. These provisions clearly show that while entertaining the application for possession under clause (a of sub-section (1) of Section 21 of the Act the Court has to find out, on evidence led before it, as to what is the purpose of the charitable trust and also whether the residential building is sought for occupation for business purposes or whether the tenant of residential premises, if he is a member of armed forces has got a certificate to the effect that he is serving under special conditions mentioned in Section 3 of the Indian Soldiers (Litigation) Act, 1925 or whether he has died by enemy action while so serving an the proceedings are being filed against his heirs. All these questions of fact will have to be considered whole entertaining the application under clause (a) of Section 21 (1) of the Act as laid down by the third proviso. It is obvious that said stage would be reached only when the prescribed authority takes up the application for consideration on merits of the grounds mentioned in clause (a) of Section 21(1) which are pressed in service by the landlord for getting possession.”

17. As quoted above, the judgment of Martin & Harris Ltd. (Supra), has said that the term “entertainment” used in the proviso should not be misconstrued and read as to be synonymous to the word “institute”, as two words can have a different impact and legal implication for the purposes of drawing the proceedings under Section 21 (1) (a) of Act No. 13 of 1972, and the relevant ratio has been observed by the Hon’ble Apex Court in para 9 of the said judgment while drawing a distinction as to what impact the words entertainment, filing and institution will have in the context of the proceedings under Section 21 (1) (a) of Act No. 13 of 1972. Relevant para 9 is extracted hereunder :-

“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 from 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 first proviso to Section 21(1) of the Act would mean 'Institution' of such proceedings before the prescribed authority or would at least mean taking cognisance of such an application by the prescribed authority by issuing summons for appearance to the tenantdefendant. 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.”

18. In that eventuality, where the landlord initiated the proceedings under Section 21 (1) (a) of the Act, without compliance of the proviso of giving six months prior notice to the tenant in order to give him a prior information to put his house on release, the initiation of the proceedings under Section 21 (1) (a) of Act No. 13 of 1972, which would be in violation of the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, and hence, the very genesis of the proceedings under Section 21 (1) (a) of Act No. 13 of 1972, as instituted by the landlord will be in contravention to the statutory mandate as provided under the Act No. 13 of 1972. The same would not be maintainable and the plea of waiver, there was no occasion to be met with by the counsel for the respondent / tenant, particularly when as already observed, when the notice of 9th February, 2009, which cannot be said to be synonymous notice to the notice under the proviso to Section 21 (1) (a) of Act No. 13 of 1972.

19. For the aforesaid reasons, since there is an apparent non compliance of the provisions contained under the first proviso to Section 21 (1) (a) of Act No. 13 of 1972, the entire proceedings drawn by the landlord under Section 21 (1) (a) of Act No. 13 of 1972, for seeking release of the tenement in question being in violation of the statutory mandate and the basic intention of giving a prior intimation to the tenant about the landlord’s intention for getting the tenement released, the same is not being achieved, and hence, the Appellant Court’s judgment cannot be faulted in any manner whatsoever, and particularly for the reason, when by way of repetition, it is observed, that the so called notice was produced for the first time before the Appellate Court and it was not a subject matter of scrutinization at the first available opportunity i.e. in a proceeding before the Prescribed Authority. As such, since this was the only limited contention raised by the learned counsel for the parties, which has been answered by this Court accordingly, the release in itself is held to be bad in the eyes of law, and further venturing into the observations made by the Appellate Court’s judgment is not required to be gone into by this Court at this stage when the proceedings under Section 21 (1) (a) of Act No. 13 of 1972 itself, is held to be vitiated in accordance with law, when other grounds were not pressed.

20. Accordingly, the Writ Petition is dismissed.