JUDGMENT Yatindra Singh, J.
1. This is the tenant's writ petition against the order dated 14.6.1995, Annexure-2 to the writ petition, passed by the Prescribed Authority, Allahabad, and the order dated 9.9.1997, Annexure-1 to the writ petition, passed by the VIIIth A.D.J., Allahabad, In proceeding under Section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1971 (the Act for short).
FACTS
2. One Smt. Husna Kunwar was the owner of the premises in dispute, namely, shop situated at 64/57, Meerganj, Allahabad. She sold it to respondent Nos. 3. Sri Hari Om Varshney and 4, Sri Prahlad Varshney on 7.8.1984. They are now it's landlord (now referred to as the landlord). The petitioners are the tenants of the shop at the rate of Rs. 60 per month. The landlord has filed an application on 23.9.1991 under Section 21 (1) (a) of the Act on the ground of his personal need of his sons. This application was admittedly after 3 years from the date of purchase of the shop, but in the application it was not mentioned that landlord had given six months notice as required in provision to Section 21 (1) (a) of the Act. The petitioners have filed an objection. They denied the allegations in the application. But did not take the specific plea in their objection that six-month's notice as required by the law has not been given ; though there is a general plea that application is not maintainable in view of proviso to Section 21 of the Act.
3. The prescribed authority after considering the evidence on the record has held that the need of the landlord is bona fide and greater hardship will occasion to them in case the application is rejected. He makes a passing reference about the question regarding notice as contemplated under the proviso. The tenants filed an appeal. The appellate court upheld the findings of the prescribed authority regarding bona fide need and greater hardship. There is no discussion about the notice. The tenants appeal for their eviction was dismissed but they were awarded more compensation.
POINTS FOR DETERMINATION
4. I have heard counsel for the parties, Sri Ravi Shankar Prasad argued the case with great ability for petitioners and Sri Rajesh Tandon appeared for the respondents.
* Was the need bona fide? Was the hardship properly compared?
* Was a notice under proviso to Section 21 (1) mandatory? Was it necessary for the landlord to plead and prove the notice under proviso to Section 21 (1) of the Act? Can the tenant waive it?
* Has it been waived?
BONAFIDE NEED-HARDSHIP
5. Sri Hariom Varshney, the landlord has got three sons, namely. Prahlad Varshney, Roopak Varshney and Vinay Varshney. They are doing business of 'Vanaspati Oil' in the shop. The present application has been filed for the personal need of two of his adult sons, namely, Roopak Varshney and Vinay Varshney. They would like to do business separately. Both the Courts below after considering the evidence on record have held that the need of the landlord to set up his sons Roopak Varshney and Vinay Varshney in business separately is bona fide.
6. The Courts below have also held and Sri Ashok Gulati (deceased) was the tenant of the premises in dispute and after his death, his family members. Smt. Kalpana Gulati, petitioner No. 1, wife of late Ashok Gulati ; Km. Ruchi Gulati and Km. Deepa Gulati, petitioner Nos. 2 and 3, are daughters of late Ashok Gulati ; Smt. Sudarshan Gulati, petitioner No. 4, is the mother of late Ashok Gulati. have become the tenant of the premises in dispute. Smt. Kalpana Gulati lives in Hathras along with her two daughters Km. Ruchi Gulati and Km. Deepa Gulati. They are studying there. Smt. Sudarshan is aged person. She never did business earlier nor now doing any business. No substantial business is being carried out at present. The business is merely for show. In view of this, the Courts below have held that in case the application of the landlord is rejected, greater hardship will occasion to him.
8. 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 bond 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 ;
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 cannot 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.
9. It is true that the application under Section 21 (1) (a) of the Act cannot 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. Counsel for the petitioner has cited--Vijai Bahadur Singh v. IVth Additional District Judge. Etawah, 1997 ALR 544 and Abdul Jabbar v. VIIth Addl. District Judge, Gorakhpur and others. 1989 ACJ 137 to establish that service of notice is mandatory. This is correct. In these cases, an objection was taken before the Court below. These rulings are silent if this right can be waived or not? This question, in respect of this proviso, has been gone inter by the Apex Court in Martin Harris Ltd. v. VIth Additional District Judge, 1998 SC FB Rent Cases 7. There it has been held that it is beneficial piece of legislation and has been enacted by the Legislature for the protection of the tenant. It can be waived.
HAS IT BEEN WAIVED
10. The service of notice is not a part of cause of action. It is not necessary to plead it. It is a protection given to the tenant, it was for him to raise a plea or waive it. The landlord in the present case did not plead in his application that he has given six months notice to the tenant. The tenant has taken a general plea in his written statement that the landlord's application should be dismissed as it is barred by proviso to Section 21 of the Act. There is no specific plea regarding service of six months' notice. The Prescribed Authority, in the impugned order says that 'the plaintiff has filed a copy of the notice 83B to complete the formalities. It appears that opposite party has been served with the six months' notice'. The judgment is in Hindi. It is English translation. This point is not dealt with in the appellate court judgment. The petitioner has not filed grounds of appeal to show if this point was raised in the appeal. The petitioner has also not alleged tn the writ petition that this point was argued before the appellate court and has not been dealt by it. The tenant-petitioner has waived it. Apart from it, this point relates to question of fact. It was not argued before the Court below. It cannot be raised fn the writ petition. I am not the only one to say this. This Court in Kashi Prasad v. IVth Addl. Distt and Sessions Judge, Kanpur, 1988 (2) ARC 360 and Smt. Nazuk Jahan v. IVth Addl District Judge, 1980 (2) UPRCL 396 has taken the same view. This was also so held by the Apex Court in Martin and Harris Ltd. v. VIth Additional District Judge and others, 1988 SC and FB Rent Cases 7. In this case the application under Section 21 (1) (a) of the Act was filed within six months of the notice and the objection was taken in the written statement, but was later on not pressed. The Apex Court held that :
"On the facts of the present case there is no escape from the conclusion that the said benefit of protection, for reasons best known to the appellant was waived by it though it was alive to the said contention as it was mentioned at the outset in the written statement filed before the prescribed authority. Thereafter it was not pressed for consideration. Result was that the respondent-landlord by the said conduct of the appellant irretrievably changed his position and would get prejudiced if such a contention is entertained at such a late stage as was tried to be done before the High Court after both the Courts had concurrently held on facts that the respondent-plaintiff had proved his case on merits."
CONCLUSION
11. There is no illegality in the impugned orders. The writ petition has no merit. It is dismissed with costs. However, the petitioner tenant is granted six months time to vacate the premises in dispute provided he files an undertaking in the form of an affidavit within one month from today before the prescribed authority concerned that he will peacefully hand over the peaceful possession of the premises in dispute to the landlord within six months and pay the entire rent and damage for the period of his occupation.