Sunita Agarwal, J. - Civil Misc. Delay Condonation Application No. 337196 of 2014

2. Delay in filing the restoration application has been sufficiently explained.

The delay condonation application is allowed.

3. Delay condoned.

Mrs. Sunita Agarwal, J. - Civil Misc. Restoration Application No. 337204 of 2014

The reason given for non appearance of the learned counsel for the appellant is sufficient.

2. The restoration application is allowed. The order dated 7.7.2006 is hereby recalled.

3. The writ petition is restored to its original number.

Mrs. Sunita Agarwal, J. - The writ petition is restored to its original number.

2. Rejoinder affidavit filed today is taken on record.

3. Heard Shri K.M. Garg, learned counsel for the petitioner and Ms. Deeba Siddiqui, learned counsel for the respondent-landlord.

4. By means of the present writ petition, the petitioner has challenged the orders of release of the shop in question which exists in a place known as Mandawar situated near the District Headquarters of Bijnor. The release application was filed in the year 1989 on the ground that the applicant-landlord required the shop in question for his business. It was categorically stated in paragraph 2 of the release application that the applicant landlord completed his education from Agra University and thereafter made an effort to get an employment but had failed and he wanted to start his business in the shop in question. In paragraph 5 of the release application, it is stated that the applicant landlord was not doing any business from the shop at a place known as Chandak nor his family reside at that place. He wanted to do grocery/Kirana business in the shop in question for his livelihood and of his family. The shop was purchased in June, 1980 and six months notice as required under the U.P. Act No. 13 of 1972 was given on 6.12.1988 asking the opposite party to vacate the shop in question for the need of the landlord.

5. In paragraph 8A of the release application it is stated that the opposite party had taken another shop in the nearby market place which belonged to one Shri Narender Verma son of Shri Hori Lal Verma and was using it as a store for this shop. The opposite party tenant thus could get another shop in the locality for its business.

6. In the written statement, the opposite party though accepted landlord-tenant relationship between them but contested on the ground that there existed two shops at Mandawar main Bazar, out of which one shop was being used by the father and brother of the landlord for their business whereas another shop was vacant which could be used by the landlord for his business.

7. The Prescribed Authority and the Appellate Authority both have recorded categorical findings of fact that no other shop was available in Mandawar where the landlord wanted to start his business. One shop which was stated to be vacant was in possession of his father and he was using it as a godown.

8. On the plea taken by the tenant that the applicant landlord was doing business of grocery in a shop at Chandak Railway Station, the finding is that there was categorical denial in the release application and further the tenant could not prove otherwise. Certain photographs produced before the Court below were disbelieved on the ground that they were not sufficient to prove the plea of the tenant. Affidavit paper No. 42Ga filed by the landlord was considered to record this finding.

9. On comparative hardship, after considering of the provisions of Rule 16(a), it was held that the opposite party-tenant could get another shop. It was also found that admittedly the tenant had taken another shop on rent in the near-by locality for storage of the good of the disputed shop but no effort was made to get an alternative accommodation. Weighing the likely hardship of the parties, the Courts below had recorded that the likely hardship of the landlord would be more than the likely hardship of the tenant.

10. Challenging these finding, the first submission of the learned counsel for the petitioner is on the maintainability of the release application itself. His contention is that the petitioner is a Public Sector undertaking and, therefore, the release application was not maintainable in view of Section 21 (8) of the U.P. Act No. 13 of 1972 (hereinafter referred as the Act) on the ground of personal need of the landlord. Admittedly this plea was not taken by the petitioner before the two Courts below at any point of time rather the landlord-tenant relationship was admitted. Admittedly this plea has been taken for the first time in the writ petition.

11. This apart, there is no document on record to establish that the petitioner-tenant is a Public Sector Corporation. In this regard the contention of the learned counsel for the petitioner is that the petitioner no. 1 is a registered Charitable Society created for Public Services funded by the Khadi and Village Industries Commission constituted under the Khadi and Village Industries Commission Act (having its Head Office at 102 Chandak Nagar, Dehradun. This registered Society has its Branches at many places including one at Mandawar. In support of this submission, reliance has been placed upon a certificate dated 4.8.1993 issued by Khadi and Village Industries Commission, Regional Office, General Mahender Singh Nagar, Dehradun which reflects that this is a registered society having its registration No. 1747 and certificate No. 3238. It is stated in the certificate that the State Government is conducting inquiry regarding work of this institution. However, the bye-laws of the society are not on record which would be relevant to decide the nature of the society which is registered under the Societies Registration Act. In absence of the bye-laws, the certificate which has been brought on record by way of supplementary affidavit would not be sufficient to conclude that the petitioner is a Public Sector Corporation within the meaning of Section 21(8) read with Section 3 (p) of U.P. Act No. 13 of 1972.

12. There is another aspect of the matter, the plea regarding maintainability of the release application on this ground has been taken for the first time by the petitioner in the present writ petition. Admittedly, no such plea was taken before the Court below.

13. The U.P. Act No. 13 of 1972 has been promulgated in order to regulate the issue of letting, rent and eviction of the tenants from certain classes of building situated in an Urban area. The exemption or benefits provided under the Act to the landlord or the tenant are personal in nature. If the tenant chooses not to seek any benefit available to him under the Act, it would amount to waiver on his part. The plea of maintainability of the release application on the ground of the petitioner being a public sector undertaking ought to have been taken at the very first opportunity i.e. in the written statement itself. Admittedly no such plea has been taken and as such it can be concluded that the tenant has waived this plea. This view taken by the Court finds support from the decision of the Apex Court in t he case of Martin and Harris Ltd. v. VIth Additional District Judge and Others 1998 (1) Supreme Court Cases 732, [LQ/SC/1997/1664] relevant observation therein are quoted as under:-

13. "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 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 as found in the proviso would give the tenants concerned a locus penintentiae 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 an called 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. In this connection we may profitably refer to a decision of this Court in the case of Krishan Lal v. State of J and K [(1994) 4 SCC 422] [LQ/SC/1994/281] where in Hansaria, J., speaking for a Bench of two learned Judges has made the pertinent observations concerning the question of waiver of a mandatory 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:

"16. As to when violation of a mandatory provision makes 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 on one time Highest Court, which used to be privy Council. This question came up for examination by that body in Vellayan Chettiar v. Government of the province of Madras AIR 1947 PC 197 [LQ/PC/1947/47] in which while accepting that Section 80 of the Code of Civil Procedure is mandatory, which was the view taken in Bhagchand Dagadusa v. Secretary of State for India in Council 54 IA 336 it was held that even if a notice under Section 80 be defective, the same would next 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 the Section 80 is a protection given to the person concerned and if in a particular case 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). This point had come up for examination by this Court in Dhirendra Nath Goral v. Shudhir Chandra Ghosh AIR 1964 SC 1300 [LQ/SC/1964/59] : (1964) 6 SCR 1001 [LQ/SC/1964/59] and a question was posed in paragraph 7 whether an act done in breach of a mandatory provision is per force a nullity.

17. This Court referred to what was stated in this regard by Mookherjee, J. In Ashutosh Sikdar v. Behari Lal Kirtania ILR 35 Cal. 61 at page 72 and some other decisions of the Calcutta High Court along with one of Patna High Court and it was held that if a judgment-debtor, despite having received notice of proclamation of 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 conceived in the public interest."

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 to 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 the reasons best known to it, consciously and being alive to the clear factual situation that the suit was filed on the 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."

14. Second ground of challenge to the maintainability of the release application urged by the learned counsel for the petitioner is that the release application has been filed against an unknown entity i.e. the petitioner no. 2. The necessary party is the petitioner no. 1 who has not been impleaded in the release application. The petitioner no. 1 is a registered society which has opened its Branch Office namely Shri Gandhi Ashram, Mandawar. The release application against Shri Gandhi Ashram, Mandawar was not maintainable and the order of eviction passed against it can not be executed against the petitioner no. 1 which is a legal entity being a registered co-operative society.

15. This objection of the learned counsel for the petitioner is not acceptable for the simple reason that in paragraph 1 of the written statement filed by the petitioner nos. 2 had admitted the landlord-tenant relationship.

16. Now on the merits of the release application, the application has been filed for the need setup by the landlord therein that he required the shop in question for his business. The tenant contested the release application on the ground that the landlord had another shop at Chandak which is a near by place but has not been able to establish that the landlord was in vacant possession of any other shop at Mandawar where the landlord wanted to do his business.

17. It is well-settled that it is choice of the landlord to do his business at a particular place. The tenant or the Court for that matter cannot be a guide to instruct the landlord to do his business at Chandak itself. Moreover the finding of fact is that there is categorical refusal of the landlord that he was doing grocery business in a shop at Chandak which could not be rebutted by the tenant by leading cogent evidence.

18. On the comparative hardship, the categorical finding is that the opposite party had failed to establish that it had made an effort to get an alternative place. The record proves that other shops were available in the vicinity which could have been taken on rent by the opposite party/tenant.

19. In view of the above discussion, no infirmity is found in the concurrent findings of fact recorded by the Courts below, hence, no interference is required. There is no merit in the writ petition.

20. Learned counsel for the petitioner at this stage submits that the petitioner may be provided a reasonable time to shift their belongings.

21. This request has not been seriously objected by the learned counsel for the petitioner, however, she submits that the petitioners are occupying the shop for a meagre rent of Rs. 40/- per month and the release was filed 26 years back, the landlord had suffered irreparably.

22. In view of this, it is provided that:-

(1) The petitioner shall file an undertaking before the Court below within a period of four weeks along with certified copy of this order that they shall vacate the shop in question on or before 1.2.2017.

(2) The rent of the shop in question can not be less than Rs. 3000/-. The petitioners-tenant are, therefore, directed to tender an amount of Rs. 3000/- towards monthly rent from 7th of February, 2016 till the date of vacation of the shop in question.

(3) In case of any default of any of the conditions above, it would be open for the respondent-landlord to proceed for the eviction of the petitioner in accordance with law.

23. With the above observations and directions, the writ petition is dismissed.