Section 21 of UP Urban Buildings Act - Tenant Did Not Raise Objection Even At The Appellate Stage, Fit Case To Apply Doctrine of Waiver: SC

A two-judge Bench of Justice KM Joseph and Justice PS Narasimha in its judgment rendered on 8th December '21 has observed that as the tenant did not raise any objection in relation to the notice sent by the Appellant for the former's eviction, even before the Rent Controller in his Written Statement and even at the Appellate stage contending that the notice was defective, this was a fit case to apply the doctrine of waiver.

Senior Counsel Mr. Joy Basu appeared for the Appellants, while Counsel Mr. Senthil Jagadeesan was appointed as an Amicus to assist the Court.

In this case, the Landlord-Appellant had sent a notice to the tenant- Respondent to vacate the property which was given to them exclusively for non-residential purposes. The notice was replied to with no objections and an application was filed before the Rent Controller under section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The Rent controller ordered for eviction of the tenants. The tenants carried the matter in appeal where the matter was dismissed by the Appellate Authority.

The tenant then filed a Writ Petition before the High Court where the appeal was allowed on the sole ground that the landlord had not complied with the requirement under the proviso under section 21(1)(a) that no notice was given 6 months prior to filing the application.

The Appellant contended before the Supreme Court that the application for eviction was filed after the expiry of 6 months. Further, it was argued that even if an assumption is drawn that the Appellant fell foul of the mandate of the proviso, the conduct of the tenant is such that it must be held that he has waived his right.

Also, it was pleaded by the Appellant that even assuming that the notice sent by the appellant was defective, it is capable of being waived and it was, in fact, waived.

The Apex Court observed, "In the facts of this case, the tenant has not raised any objection in not only the reply notice, but even in the written statement before the Rent Controller. What fortifies us further is that even in the appeal before the appellate Court, the tenant did not urge the ground. If at all there is a case for waiver, this would be one."

Further, the Bench opined, "However, under Section 21 of the Act, as correctly pointed out by the learned Amicus, under the second proviso, in respect of a non-residential premises or a building let out exclusively for non-residential purpose, an order for payment of an amount not exceeding two months' rent as compensation is called for."

The Court also noted that in this case, a building was let out exclusively for non-residential purposes, in this context, the Court ordered the Appellants to pay a sum of Rs. 30,000 to the Respondents.

Accordingly, the Court allowed the appeal and set aside the impugned order of the High Court, and restored the order of the Rent Controller.

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