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Civil Appeal No. 39 of 1964, decided on 14th May 1964.
(On appeal from the judgment and decree of the High Court of West Pakistan, Lahore, dated the 27th March 1964, in S. A. No. 53 of1964).
‑Granted to consider (1) whether the occupant of an evacuee house could contract or opt out of the protection given to him by section 30, Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) and (2) whether, even if he could so opt out of it, the agreement between the occupant and transferee of the house by which occupant agreed to pay double the rent assessed in Municipal records was void being wholly without lawful con sideration‑Constitution of Pakistan, (1962), Art. 58.
, S. 30 (1) proviso (b) (2) (3) (i) (ii)‑Tenant under S. 30 cannot contract out of protection provided by section--- Such contract void being against public policy‑Section 30 (1) creates a statutory tenancy‑Section 30 (1) proviso (b) and S. 30(2) fix terminus a quo of such tenancy‑Statutory tenancy is in addition to any other right of the tenant‑Tenancy to be on same terms and conditions upon which tenant occupied premises before their transfer‑Notice contemplated under S. 30 (1) proviso (b) or under S. 30 (2) not an "implied notice" or "information received aliunde"‑Express notice in writing must be given in manner prescribed (per Hamoodur Rahman, J., Cornelius, C. J., S. A. Rahman and Fazle‑Akbar, JJ. concurring; Kaikaus, J. contra).‑Technical compliance with S. 30 (1) cannot be insisted upon‑Notice may be waived (per Kaikaus, J.)‑Interpretation of statutes‑Every word has to be given a meaning‑Two notices: (1) giving intimation of transfer, (2) containing a demand‑Both may be combined into one‑Notice of demand necessary to deprive a tenant of protection of S. 30 (1}‑Tenant's offer to give up possession to landlord or to pay more rent than what is chargeable under the Act cannot be lawfully enforced‑Maxim: Expressum facit cessare tacitum (If doing of a particular thing is made lawful, doing of something in conflict of that will be unlawful).
Held [per Hamoodur Rahman, J., Cornelius, C. J., S. A. Rahman and Fazle‑Akbar, JJ. concurring; Kaikaus, J. contra (in parts)] that a person protected by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 could not lawfully contract out of that protection, for, such a contract would be void being against public policy.
Section 30, Displaced Persons (Compensation and Rehabi litation) Act (XXVIII of 1958), by its own force created a statutory tenancy in favour of such persons who were in occu pation of evacuee premises at the time of their transfer. This statutory tenancy was to be in addition to any other right which they may have in such premises but upon the same terms and conditions upon which they occupied the premises before their transfer. Proviso (b) to subsection (1) further fixes the date from which the statutory tenancy is to commence; namely, where a notice of the transfer has been served on the tenant by the transferee within one month of such transfer by registered post (acknowledgement due) then the tenancy commences from the date of the transfer but under subsection (2) where no such notice is served, then from the date of the receipt of such notice by the tenant. The service of the notice is, therefore, not merely a formality for acquainting the tenant of the transfer of the premises nor merely in the nature of a notice of attornment, but it is designed to fix the terminus a quo of the period of protection.
It is difficult to accept upon the wording of this section that such a notice could even be implied notice or information received aliunde. In the face of the language of the proviso, which requires that the notice should be served "by registered post (acknowledgement due)", such an interpretation is not possible. To hold tot, notwithstanding such clear and unambiguous words, even implied notice would be sufficient would be to render the words "by registered post (acknowledgement due)" in the proviso redundant, which cannot be done. Every word in a statute has to be given a meaning and the only meaning that these words are capable of bearing is that express notice in writing must be given in the manner prescribed.
The scheme of the section, furthermore, appears to be to leave nothing to doubt; hence even the manner of the service of the notice is clearly provided for and the extent of the protection accurately defined. Even the circumstances in which the tenant would be deprived of this protection have been specified and not left in doubt. Furthermore, subsection (3) firstly provides that a tenant must pay or tender rents payable under the said section to the transferee within three months from the date of the receipt of a notice of demand sent to him again "by registered post (acknowledgement due)." Secondly, since the protection is a personal protection, the tenant must not sublet or otherwise part with the possession of the premises and thirdly, he must not commit acts of waste and must not be in possession of similar premises in the same town or city. It is thus clear from the language of the section that the notices contemplated thereunder must be of two kinds: (1) giving intimation of the transfer and (2) containing a demand. It is, of course, possible that both these notices may be combined into one, as, for example the same notice while giving intimation of the transfer might also demand the rent and/or arrears of rent, if any, due for any period after the transfer. But where no such combined notice has been issued, it would, in order to take a tenant out of the protection from eviction granted to him by proviso (b), be necessary to serve upon him a second notice of demand as contemplated by clause (i) of subsection (3). It may not be necessary to serve such a notice of demand each time there is a default but, at any rate, at least one notice of demand has of necessity to be served to deprive the tenant of the protection. The decision in the case of Jiando Khan v. Hakim Muhammad Ishaq P L D 1964 Kar. 61 does not lay down any different principle. In that case the notice actually served was a combined notice and, therefore, satisfied the requirements of section 30. If this decision intended to lay down ,that the service merely of the first notice under proviso (b) would be sufficient to deprive the tenant of the protection, if thereafter he did not pay rent regularly, then it cannot be held to have laid down the law correctly: One notice of demand is at least necessary for the protection to be lost and that too from the expiry of the period of three months from the date of receipt of such a notice of demand. Unless such a notice of demand is given, the commencement of the period of three months cannot be fixed.
Jiando Khan v. Hakim Muhammad Ishaq P L D 1964 Kar. 61 considered.
Reading the provisions of the Act as a whole section 30 was not intended to protect private rights, for, mere allottees did not by the allotment alone acquire any rights in the property but were designed as a matter of public policy to give general protection to such occupants not only as to irremovability for a reasonable period but also as to occupation upon payment of a reasonable rent.
Maxwell's Interpretation of Statutes, 11th Edition, page 376 and Megarry's Rent Acts, 9th Edition, page 14 rel.
Although such provisions cannot be construed to prevent a tenant from giving up possession of the premises in his occu pation of his own wish and accord yet this does not mean that an agreement to do so can be lawfully enforced by the landlord. Similarly even though there may be nothing in the Act to prevent a tenant from voluntarily paying more than the rent chargeable under the Act, this would not entitle the landlord to enforce an agreement to pay at an enhanced rate, for, that would be in direct conflict with the provision in the statute which gives a tenant a right to retain possession of the premises upon the same rent at which he held the premises immediately before its transfer, This view, therefore, that because there is nothing in the Act which expressly prohibits the landlord or transferee of the premises from charging rent at a higher rate or that because the Act does not say that it shall not be lawful for the landlord to accept a higher rent the landlord is not necessarily debarred from doing so, cannot be upheld. The provision in the section that it shall be lawful for the transferee to charge rent on the basis of the last assessment by necessary implication makes it unlawful for him to charge rent at a different rate upon the well known principle of expressum facit cessare tacitum. If a doing of a particular thing is made 14NW the doing of something which is in conflict with that will be lawful.
Per Kaikaus, J. contra (in parts): I am of the opinion that technical compliance cannot be insisted upon for the reason, inter alia, that such compliance may be impossible and I am also of the opinion that it can be waived.
The requirement of law is only that "notice shall be given by the transferee to the tenant of such transfer by registered post (acknowledgement due)". If a document is sent by registered post and it brings the transfer to the notice of the tenant the law is sufficiently complied with although section 30 is not mentioned. It is not the requirement of law that section 30 should be mentioned in the notice.
[Notice in the following terms: "(1) You had begun paying me the rent of the flat in your possession after you had a talk with me at my flat upstairs and after I had shown you the P. T. O. issued to me by the Settlement Department. (2) On my saying that I would send you a notice, you said you did not require a notice as you had seen the P. T. O." was held to be sufficient].
Any right or benefit conferred on a party can be waived for a person is entitled to do anything with what is his, but if the provision be based on public policy it cannot be waived. The question, therefore, to be determined in each case would be w Nether the particular provision in dispute is based on public policy. When we say that a rule is based on public policy we mean it has been framed not for the benefit of the individual whom it actually benefits (or not for his benefit alone) but for the benefit of the public or the society.
"Craies" on Statute Law; "Halsbury", Vol. VII, (2nd Ed., p. 153) and Prem Parkash v. Mohan Lal A I R 1943 Lah. 268 ref.
The question under consideration is whether the parti cular mode of service of notice can be waived that is whether the tenant can agree to a notice which is not sent to him by registered post, but by some other method referred to above. If the tenant accepts a notice which has come to him by ordinary post or through a peon and sends a letter to the transferee that he does not stand in need of a registered notice, what public interest will suffer by the waiver What is the difference to the public if the tenant accepts a notice through ordinary post instead of through registered post
Whether the grant of a period of six years was a matter of public policy which could not be waived is a matter quite distinct from the question whether the particular method of service can be waived. But even the grant of a period of six years to a class of persons neither necessarily means that they are not entitled to waive this benefit nor does it mean that the intention was to provide occasions for raising technical objections by which this period may be increased. If the tenant was entitled to occupy for six years could lie not on payment of consideration transfer this right I do not think he was debarred from doing so. There is nothing in the Act which indicates such an intention. In fact it may have been much more for the benefit of an occupant in a particular case to sell his right of residence to another.
To protect the occupants against action by the transferees it was regarded proper to provide that they will be entitled to remain in possession for six years. But the intention being to grant them protection it was sufficient that the right of residence was granted to them. What they do with the right is their own lousiness and they cannot possibly have any cause for complaint if they are allowed to do with the right as they please. I do not think therefore that residence for six years was intended as a matter of public policy which could not be waived.
If the provision is intended for "the benefit of an individual or class of individuals" it can he waived.
So far as the enhancement of rent is concerned that is a different matter which has to be considered in the light of the various Rent Restriction Acts which have been passed. The Rent Restriction Acts would have been rendered useless if rent was allowed to be enhanced. The allottee was granted by section 30 the right of a tenant and the same considerations which would apply to a tenant apply to him.
Vellayan Chettiar v. Madras Province P L D 1947 P C 160 ref.
, S. 30 (1)‑Tenant agreeing to pay enhanced rent‑Suggested consideration for agreeing to pay such rent: Landlord's allowing tenant to remain in occupation even after expiry of period of statutory protection‑Landlord serving notice of ejectment without waiting for such statutory period to expire -----Tenant thereby absolved from performing his part of the contract----- Contract Act (IX of 1872), S. 72.
Muhammad Asaf Senior Advocate Supreme Court (Gul Muhammad Butt Advocate Supreme Court with him) instructed by Muhammad Aslam Chatha Attorney for Appellant.
Nasim Hasan Shah Senior Advocate Supreme Court (M. Ilyas Khan Advocate Supreme Court with him) instructed by M. Habibullah Attorney for Respondent.
Dates of hearing: 13th and 14th May 1964.
--‑This appeal, by special leave, is against the judgment and decree of a learned Single Judge of the High Court of West Pakistan dismissing a second appeal from an order of a Rent Controller directing the ejectment of the appellant from premises No. 3/24, Temple Road, Lahore.
The appellant has been in occupation of the ground floor of the said premises as a monthly tenant from long before Independence. He claims to have been inducted as such tenant by the original owner of the said premises one Dr. Mahraj Krishan at a rental of Rs. 52 per mensem. After the migration of the said landlord to India the premises became evacuee property and vested in the Custodian but the appellant continued to occupy the said premises as a tenant under the Rehabilitation Department paying rent at the rate of Rs. 55 per mensem inclusive of a water rate of Rs. 3 per mensem. The rent charged by the Rehabilitation Department was, it is said, in accordance with the Municipal assessment which in the case of evacuee properties was last made in 1945. The Rehabilitation Depart ment also allowed rebate of 10 % for prompt payment and thus the appellant actually paid only Rs. 49‑8‑0 per mensem.
The said premises were provisionally transferred to the respondent herein on the 23rd of February 1960. No notice of the said transfer, it is alleged, was given to the appellant by the respondent but the appellant coming to know thereof from the Rehabilitation Department approached the respondent in September 1960, and offered to pay rents to him. The respondent thereupon informed him that he was legally entitled to charge "double the rent for 1946", presumably, on the basis of a Press Note issued by the Settlement Commissioner (Policy) on the 15th of April 1960 (vide page 134 of the Manual of Settlement). Since the respondent was himself a lawyer, the appellant bona fide believed that the correct legal position was as represented by the respondent and agreed to pay at the rate of Rs. 110 per month provided he was not evicted from the premises even after the expiry of the period of three years during which occupants of evacuee premises had been given a right to continue in occupation under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act).
On the basis of this agreement the appellant paid rent at the rate of Rs. 110 per mensem from September 1960 to November 1961, but to his surprise in December 1961, he received an undated notice calling upon him to quit and vacate the premises occupied by him within a fortnight. The grounds upon which the appellant was sought to be evicted were as follows:‑
"(a) That your portion and the portion in possession of my client constitutes one house. Two houses are not transferred to any displaced person. Your portion is only a portion of my client's house. You, therefore, do not enjoy the protection of three years:
(b) You have not completely desisted from damaging the property. Your sons' use of the common lawn and common veranda as a playground for cricket etc., which has already damaged the pavement and a part of the pipe. The broken part of the pipe has been removed by you and placed in your courtyard which is visible to my client from his portion. Further the keeping of pigeons in the barsati and kite flying at the roof of the barsati by your sons and their hammering and scaling of one‑brick wall and their irresponsible behaviour while flying kites caused heavy repairs which my client had to undertake at his own expense.
(c) That my client needs very badly the premises in your possession for his office. Without proper office, my client's chances of progress in the legal profession cannot be bright. It is not at all suitable to have office upstairs. Without office at the ground floor where arrangements can be made for the temporary stay of his mufassil clients, my client's life as a lawyer is not in order. Consequently he is under great strain which is telling very badly on his nerves."
In this letter the respondent admitted that no notice of the transfer of the premises had been given but it was said that this was not given, because, the appellant had by himself first approaching the respondent and offering to pay rents to him waived such notice. It was also admitted that the appellant had been since regularly paying the rent, nevertheless, it was maintained that the appellant was not entitled to the protection of section 30 of the Act. The appellant on the 21st of December 1961; acknowledged the receipt of this notice, denied the allegations contained therein and claimed that he was protected against eviction under the Act, It was also contended that the respondent had been charging rent in excess of the assessed municipal rate illegally and that he should, accordingly, either refund the excess amount of Rs. 870 already received or adjust the same towards future rents. Since the respondent did not either refund the excess amount or agree to adjust the same as demanded, the appellant stopped payment of rent and on the 10th of March 1962, actually instituted a suit for the recovery of the excess payment of Rs. 870. The respondent retaliated by filing on the 16th of March 1962, an application for the ejectment of the appellant in the Court of the Rent Controller under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Again before the institution of the said proceedings for eviction no notice of demand, as contemplated by subsection (3) (i) of section 30 of the Act, was served upon the appellant.
The latter duly contested the said proceedings by filing a written statement challenging the maintainability thereof in the absence of the notices required to be given under the provisions of section 30 of the Act. He also denied that he had made any default in the payment of rent and maintained that he should be given credit for the excess payment of Rs. 870 and the same should be adjusted against future rents. The validity of the other grounds upon which eviction was sought were also challenged. The rent Controller, however, on the 30th of May 1962, provisionally fixed the rent at Rs. 110 per mensem and directed payment of the arrears and future rents at this rate. This order was challenged by the appellant but it was maintained even up to the High Court. Thereafter, on the 9th October 1963, the Rent Controller granted a decree for the ejectment of the appellant only on the ground of default, since the appellant had refused to pay rent at the rate of Rs. 110 per mensem from December 1961.
The Rent Controller hold that although admittedly no notice under section 30 of the Act had been given yet the tenancy started when the appellant, of his own accord, met the respondent and informed him that the property had been transferred to the latter. He repelled the contention that the notice under sub section (1) of section 30 was necessary for the creation of the relationship of landlord and tenant. According to the Rent Controller the notice only determined the commencement of the period of three years during which the occupant of evacuee premises could not be evicted by the transferees thereof. In any event, since the notice was only necessary to inform the occupant of the transfer of the premises in order that he may pay rent to the transferee and thus attorn to the new owner, this notice could be waived and would not be necessary where the occupant actually admitted knowledge of the transfer and attorned to the transferee by paying rent. It was also held that section 30 of the Act did not make it unlawful for the transferee to charge rent above the rate of the latest Municipal assessment of the premises. Hence, since the appellant had voluntarily agreed to pay rent at the rate of Rs. 110 per mensem, he could not now turn round and claim a refund of the amount paid in excess of the Municipal assessment or ask for its adjustment against future rents.
The Rent Controller in his judgment also noticed that in the present case the appellant offered to pay rent "at the rate of Rs. 110 on the consideration that he should not be ejected even after three years" but did not examine the question as to whether the respondent was, in the circumstances, entitled to evict the appellant even before the expiry of three years and yet demand rent at the rate the appellant is said to have agreed to pay. If the consideration for the payment of the enchanced rent was the promise not to evict even after the expiry of the statutory period of protection granted by section 30 of the Act, then the question did arise as to whether in law even when the consideration failed by reason of the refusal of the party from whom that consideration moved to fulfil it the other party could still be held liable to perform his part of the contract or as to whether the contract became one wholly without consideration and, therefore, unenforceable.
The Rent Controller did not also consider as to whether the occupant of an evacuee house could be deprived of the protection given to him under proviso (b) to subsection (1) of section 30 of the Act without service upon him of a notice of demand by registered post (acknowledgement due) and without failure on the part of the occupant to comply with the notice of demand within three months of the date of receipt thereof.
It may be mentioned here that the other grounds for eject ment mentioned in the notice to quit were neither pressed at the trial nor was any evidence led in support thereof. The only issues upon which the parties went to trial were as follows:‑
(1) Whether the petitioner is justified in claiming rent at the rate of Rs. 110; if so, whether default has occurred
(2) What is the effect of non‑service of notice under section 30
(3) Whether the respondent started paying rent at the rate of Rs. 110 under coercion and, protest; if so, what is its effect
This decision of the Rent Controller was upheld on appeal by the Additional District Judge of Lahore and on second appeal by the High Court. All the Courts seem to have taken the view that an occupant of an evacuee premises can contract out of the protection given by section 30 of the Act. The Additional District Judge has held that the appellant could not have "unilaterally changed the rate of rent" and the High Court has said that "if he agreed to pay rent at a higher rate it was a contract between the parties of which he could not get out by merely refusing to pay it." The High Court did not, however, agree with the Rent Controller that "neither the landlord nor the tenant can apply for the fixation of fair rent" under section 4 of the West Pakistan Urban Rent Restriction Ordinance, 1959, in the case of tenancy created by section 30 of the Act but was inclined, to take the view that the only method available to the appellant for obtaining a reduction in the rent agreed to be paid by him was to move the Rent Controller for the fixation of a fair rent under sections 4 and 5 of the said Ordinance.
The High Court was also of the view that neither were two notices contemplated by section 30 nor, in the facts and circum stances of the present case, was any notice at all required to be served on the appellant. It was argued before the High Court that assuming that there was an agreement to pay rent at Rs. 110 per mensem the agreement was void, because, it was wholly without consideration but this contention was repelled on the ground that the consideration for the agreement was the occupation of the house. In these circumstances, since the appellant had failed to pay rent at the rate agreed to by him from December 1961, he was held to be a defaulter and, therefore, liable to ejectment.
Leave was granted in this case to consider: (1) whether the occupant of an evacuee house could contract or opt out of the protection given to him by section 30 of the Act and (2) A whether, even if he could so opt out of it, the agreement in the present case was void being wholly without lawful considera tion
There is not much dispute as to the facts of this case. The respondent admitted that no notice was given by him to the appellant before the latter started paying rent at Rs. 110 per mensem but he claimed that "as the relationship between the parties began on a contractual basis, no notice was necessary." Again, in his evidence the respondent stated that when the appellant offered to pay double the rent which he was paying he also at the same sitting stated that the respondent should not evict him even after the expiry of the period of protection given under the act for some private reason which the respondent did not wish to disclose. The appellant .in his examination‑in‑chief had not said anything about not being evicted even after the expiry of the said period yet he was asked in cross‑examination as to whether he had agreed to pay Rs. 110 upon the condition that he should not be evicted even after the expiry of the said period. He replied that because he agreed to pay rent at Rs. 110 he also made a condition that the respondent should not evict him even after the expiry of the period of statutory protection given by section 30.
The appellant was cross‑examined at some length to elicit as to why he had agreed to pay rent at the rate of Rs. 110 per mensem, but he stuck to his story that because the respon dent, who was a lawyer, told him that he had a right to charge double the rent, he accepted this statement. He in good faith believed that he had no alternative but to pay rent at the said rate, because, he would be liable to eviction if he did not pay the rent which the transferee of an evacuee premises was legally entitled to charge. The object of this cross‑examination, it is now suggested by the learned counsel appearing for the respon dent, was to show that the appellant voluntarily agreed to pay double the rent, because, in another Press Note published in the Pakistan Times on the 6th of November 1960, there was a suggestion that the property tax in Lahore may be raised four times, as the rise in rent is four or five times the existing value. This contention, however, overlooks that on the 5th of November 1960, there was another Press Note published in the same newspaper which dealt specifically with the rent payable by occupants of evacuee properties and clarified the false impression that some transferees of evacuee property had formed of the earlier Press Note of the 15th of April 1960, by pointing out that the latter Press Note had not even given "any legal authority to the transferee to charge double rent." In any event, in September 1960, when the alleged agreement as to rent is said to have taken place, these Press Notes of the 5th and 6th of November 1960, had not been issued and the Press Note of the 15th of April 1960, was the only relevant Press Note dealing with this matter and under this the transferees could well have formed the impression that they "would be justified in charging double the rent for 1946."
The evidence does not, of course, support the appellant's case that he was coerced into paying rent at Rs. 110 but the possibility of both the parties being under a common mistake as to a question of fact essential to the agreement; namely, that in fact double the rent for 1946 was legally chargeable for evacuee properties, cannot be excluded in view of the Press Note of the 15th of April 1960. If so, the further question may well arise as to whether the parties should still be held to their contract after the mistake had been clarified by the Press Note of the 5th of November 1960, or should not the contract be held to have been void from the very beginning under section 20 of the Contract Act.
The main question, however, that arises for consideration in this appeal is as to what is the nature of the protection given by section 30 of the Act of 1958 and whether it is open to a person who has been granted this protection to contract out of it Section 30 is in these terms:‑
"30. Protection of certain occupants.‑(1) Where any person is in possession of an evacuee house or shop or has been declared on or before the twentieth day of December 1958, by a Custodian to have tenancy rights from a date prior to the fourteenth day of August 1947, in any industrial concern, cinema house or printing press which is transferred to any other person under the provisions of this Act, then, notwith standing anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer‑‑---
provided that:‑
(a) it shall be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the Municipality or Local Authority as the case may be, for other properties in the locality generally; and
(b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years and from the industrial concern, cinema house or printing press for a period of three years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgement due).
(2) Where the transferee does not give notice within one month as required by proviso (6) to subsection (1) the period mentioned in that proviso shall count from the date of receipt of such notice by the tenant.
(3) Nothing in proviso (6) to subsection (1) shall apply to a tenant‑
(i) who has not, within three months from the date of receipt of a notice of demand sent to him by the transferee by registered post (acknowledgement due), paid or tendered the amount of rent or arrears of rent due for any period after the transfer; or
(ii) who, after the transfer, has sublet or otherwise parted with the possession of the house or shop, industrial concern, cinema house or printing press, or any part thereof, or has committed acts which are destructive of or injurious to the property; nor shall anything therein apply to the tenant of any house or shop who, in any urban area within the same town or city, owns a house or shop, as the case may be.
(4) On the expiry of the period mentioned in proviso (b) to subsection (1), or on the contravention of any of the provisions of subsection (3), whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship.
(5) Except for the purpose of implementing any scheme prepared under section 16‑B, houses and shops in possession of persons displaced from such part of the State of Jammu and Kashmir as is under the occupation of India and are residing in Pakistan shall not be trasferred under the provisions of this Act and the possession of such persons shall not be disturbed till their repatriation to the aforesaid State provided that such persons do not contravene or have not contravened any of the terms and conditions on which such houses and shops are held by them or such terms and conditions as may be determined by the Chief Settlement Commissioner from time to time."
It will be observed that the provisions of the said section are to apply "notwithstanding anything contained in any other law" and "without prejudice to any other right" which a person in possession of an evacuee house may have in that house, shop etc., and under them he is to "be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer." It would thus appear that this section by its own force created a statutory tenancy in favour of such persons who ere in occupation of evacuee premises at the time of their C transfer. This statutory tenancy was to be in addition to any other right which they may have in such premises but upon the same terms and conditions upon which they occupied the premises before their transfer. Proviso (b) to subsection (1 further fixes the date from which the statutory tenancy is to commence; namely, where a notice of the transfer has bee] served on the tenant by the transferee within one month of such transfer by registered post (acknowledgement due) then the tenancy commences from the date of the transfer but under sub section (2) where no such notice is served, then from the date o the receipt of such notice by the tenant. The service of the notice is, therefore, not merely a formality for acquainting the tenant of the transfer of the premises nor merely in the nature o a notice of attornment, but it is designed to fix the terminus a quo of the period of protection.
It is difficult to accept upon the wording of this section that such a notice could even be implied notice or information received aliunde. In the face of the language of the proviso, which requires that the notice should be served "by registered post (acknowledgement due)", such an interpretation is no possible. To hold that, notwithstanding such clear and unambiguous words, even implied notice would be sufficient to render the words "by registered. post (acknowledgement due)" in the proviso redundant, which cannot be done. Every word in a statute has to be given a meaning and the only meaning that these words are capable of bearing is that express notice in writing must be given in the manner prescribed.
The scheme of the section, furthermore, appears to be to leave nothing to doubt; hence even the manner of the service o the notice is clearly provided for and the extent of the protection accurately defined. Even the circumstances in which the tenant would be deprived of this protection have been specified and not left in doubt. Furthermore, subsection (3) firstly provides that tenant must pay or tender rents payable under the said section to the transferee within three months from the date of the receipt of a notice of demand sent to him again "by registered post (acknowledgement due)." Secondly, since the protection is personal protection, the tenant must not sublet or otherwise part with the possession of the premises and thirdly, he must no commit acts of waste and must not be in possession of similar premises in the same town or city. It is thus clear from the language of the section that the notices contemplated thereunder must be of two kinds: (1) giving intimation of the transfer and (2) containing a demand. It is, of course, possible that both these notices may be combined into one, as, for example the same notice while giving intimation of the transfer might also demand the rent and/or arrears of rent, if any, due fox any period after the transfer. But where no such combined notice has been issued, it would, in order to take a tenant out of the protection from eviction granted to him by proviso (b), be necessary to serve upon him a second notice of demand as contemplated by clause (i) of subsection (3). It may not be necessary to serve such a notice of demand each time there is a default but, at any rate, at least one notice of demand has of necessity, to be served to deprive the tenant of the protection. The decision of the Karachi Bench of the High Court of Wes Pakistan in the case of Jiando Khan v. Hakim Muhammad Ishaq (P L D 1964 Kar. 61), cited by the learned counsel for the respondent does no lay down any different principle. In that case the notice actually served was a combined notice and, therefore, satisfied the require ments of section 30. If this decision intended to lay down that the service merely of the first notice under proviso (b) would be sufficient to deprive the tenant of the protection, if thereafter he did not pay rent regularly, then it cannot be held to have laid down the law correctly. One notice of demand is at leas necessary for the protection to be lost and that too from the expiry of the period of three months from the date of receipt of such a notice of demand. Unless such a notice of demand is given, the commencement of the period of three months cannot be fixed.
We come now to the next question as to whether a tenant can opt out of this protection. On behalf of the appellant it is urged that since this protection has been given as a matter of public policy, private persons cannot be permitted to impair the integrity of a rule laid down for the common protection of a particular section of the public. On the other hand, it is argued on behalf of the respondent that this protection is a personal protection for the benefit of the occupant alone and, as such, it is open to the occupant to waive the protection or contract out of it, particularly, since there is nothing in the statute itself which can be construed as a prohibition against such contracting out. The statute does not provide as to what is to be the consequence if a person were to so waive the protection. In support of this contention reliance has been placed upon the following passage from Maxwell's Interpretation of Statutes, 11th Edition, page 376:
"Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Where in an Act there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only, or whether it is an Act which is intended, as a matter of public policy, to have a more extensive operation."
It is true that in the Act there is no express prohibition against contracting out of the provisions of section 30, but considering the Act as a whole it will appear that it sought not only to compensate displaced persons for the properties they had left behind in India but also to rehabilitate as many of them as possible out of the evacuee properties or their income. Dis placed persons coming from India had, under previous evacuee and rehabilitation legislations, been allotted premises for their residence. Some of them had left properties behind in India which qualified them for becoming claimants for the transfer of evavuee properties in Pakistan. But there were many others who were not claimants. The s6iemes framed under the Act gave a preferential right to claimant displaced persons to obtain transfers of evacuee premises in their occupation. This would inevitably affect a large number of displaced persons occupying such premises who had not been successful in obtaining their transfer. The Legislature could not possibly have intended to leave them at the mercy of the transferee or to give them no protection even for a reasonable period during which they might be able to find alternative accommodation or rehabilitate them selves otherwise
We are inclined, therefore, to take the view that reading the provisions of the Act as a whole section 30 was not intended to protect private rights, for, mere allottees did not by the allotment alone acquire any right in the property but were p designed as a matter of public policy to give general protection to such occupants not only as to irremovability for a reasonable period but also as to occupation upon payment of a reasonable rent.
Apart from this the rule generally adopted in construing such legislation giving general protection pro bono publico is to prefer the construction which will add force to the protection and suppress subtle inventions and evasions. Thus the view which has prevailed in England in construing Rent Acts which created similar statutory tenancies and contained similar pro tective provision is that:‑
"Notwithstanding the absence of any express statutory provision, it is impossible to contract out of the Acts, whether by a provision in a lease or tenancy agreement or otherwise; nor can the doctrine of estoppel exclude the Acts. An agreement by a tenant to pay more than the rent permitted by the Acts, or obliging him (even indirectly) to give up possession where the Acts do not require him to do so, is void so far as it conflicts with the Acts and will not be specifically enforced at the suit of the landlord." (Vide: Megarry's Rent Acts, 9th Edition, page 14).
Although such provisions cannot be construed to prevent a tenant from giving up possession of the premises in his occupation of his own wish and accord yet this does not mean that an agreement to do so can be lawfully enforced by the landlord. Similarly even though there may be nothing m the Act to prevent a tenant from voluntarily paying more than the rent chargeable under the Act, this would not entitle the landlord to enforce an agreement to pay at an enhanced rate, for, that would be in direct conflict with the provision in the statute G which gives a tenant a right to retain possession of the premises upon the same rent at which he held the premises immediately before its transfer. The view, therefore, that because there is nothing in the Act which expressly prohibits the landlord o transferee of the premises from charging rent at a higher rate or that because the Act does not say that it shall not be lawful for the landlord to accept a higher rent the landlord is not necessarily debarred from doing so, cannot be upheld. The provision in the section that it shall be lawful for the transferred to charge rent on the basis of the last assessment by necessary implication makes it unlawful for him to charge rent at a different rate upon the well known principle of expressum facit cessare taciturn. If a doing of a particular thing is made lawful the doing of something which is in conflict with that will be unlawful. We are of the view, therefore, that a person protected by section 30 of the Act of 1958 could not lawfully contract out of that protection, for, such a contract would be void being in against public policy.
It lastly remains to consider as to whether even assuming that contracting out was possible the contract set up in the present case could at all be enforced as a valid contract It will be observed that a tenant under section 30 was entitled as o right to stay in the premises for a period of three years (no six years) on payment of the rent which he was paying immediately before the transfer. The occupation of the premises for this period, therefore, could not form the con sideration for any contract, for, this was a right already assure to the tenant by law upon the condition of his paying rent at a particular rate. By allowing the tenant to continue to occupy the premises for this period the landlord or transfere was not giving him anything new or beyond what the la already gave him. The view of the High Court that the consideration for the agreement to pay higher rent was the right to occupy the premises even during this period of three years could not be correct. In order to create a valid an binding agreement there should have been some other conside ration moving from the landlord for which the tenant would pay at double the rate at which he was entitled under the law to retain the premises.
The respondent in his evidence clearly admitted that when the appellant agreed to pay rent at Rs. 110 per mensem he also said that he should not be evicted even after the expiry of the period of statutory protection which was then three years. The respondent does not say as to whether he agreed to this condition, but the fact that for a period of 15 months thereafter he accepted rent at Rs. 110 per month would show that if not by express words then by his tacit conduct he accepted the condition of the appellant as well. If he did not do so, then of course there was no consideration at all for the payment of the enhanced rent. On the other hand, if he tacitly did accede to this request, the by giving notice before the expiry of the period of statutory protection of three years he withdrew the consideration and the same became wholly non‑existent. In such circumstances, section 72 of the Contract Act would apply and the other contracting party would be absolved from performing his par of the contract, and if he had done anything or paid anything in pursuance of that contract, then he would be entitled to ask for restitution and reversion to the position quo ante. The respondent cannot be allowed to claim inconsistent rights in the manner in which he is doing in the present case. If h accepts the higher rent and treats the tenant as not a statutory tenant but a contractual one, then he must abide by hi] contract. He cannot unilaterally resile back to the position under section 30 and treat the tenant as a person who has been deprived of the protection thereunder and thus become liable to eviction. The Additional District Judge seems to have taken the view that the appellant unilaterally resiled from his contract but he has failed to notice that if he could not do so, the landlord also could not unilaterally repudiate his part of the contract.
The stand taken by the appellant in his answer to the notice to quit appears, therefore, to us to be correct. If the landlord repudiated the contract and elected to treat the tenant as a statutory tenant under section 30, then the tenant could not be treated as a defaulter save in accordance with the provisions of the said section. His liability under the said section was only to pay rent at the rate of the last Municipal assessment. But since he had paid for 15 months at double that rate he was legitimately entitled either to a refund of the excess amount paid or to an adjustment thereof against future rents before he could be treated as a defaulter. We are unable therefore, to agree with the Courts below that the appellant was either a defaulter or that he had lost the protection given to him by section 30 of the Act.
For these reasons we allow this appeal, set aside the judgments and decrees of the Courts below and dismiss the respondent's application for ejectment. The appellant will be entitled to his costs throughout.
.---‑While I am in agreement with Hamoodur Rahman, J. in the conclusion that he has reached and generally with the reasoning by which it is supported, I am not, with great respect, inclined to agree as to the erect of section 30 of the Displaced Persons Act. Hamoodur Rahman, J. is of the opinion that the provision in section 30 which requires notice of transfer to be sent by registered post and makes the date of receipt of notice the starting point for calculating the period of six years is a technical provision which is to be strictly complied with and which cannot be subject to waiver or estoppel as it is a provision relating to public policy. I am of the opinion that technical compliance cannot be insisted upon for the reason, inter alia, that such compliance may be impossible I and I am also of the opinion that it can be waived. I will not however deal with these matters at as great a length as I may otherwise have done because there is on record a registered notice, not referred to in the judgment of Hamoodur Rahman, J. which in my opinion satisfies the requirements of section 30.
The notice to which I am referring is a registered notice acknowledgement due dated the 30th August 1961. It was relied upon during argument before us. It is one of the documents admitted by the appellant before the Rent Controller. In the last notice of ejectment after which the application for ejectment was filed there is a mention of this notice in para. 2 and its service has been accepted in the reply to the last notice by the appellant. Both the notice and the reply are on the file and are admitted documents. This notice of 30th August 1961, is in the following words:
"Will you please inform me as to from which date and month of the last year you had begun paying the rent of the flat in your possession Also please confirm the following:
(1) You had begun paying me the rent of the flat in your possession after you had a talk with me at my flat upstairs and after I had shown you the P. T. O. issued to me by the Settlement Department.
2. On my saying that I would send you a notice, you said you did not require a notice as you had seen the P. T. O.
I may state here that I note with satisfaction that yours sons are not seen now making mischief in a manner that may damage the property."
It is a registered notice and does mention the fact of transfer. It refers to the P. T. O. and states that notice had been waived. The requirement of law is only that "notice shall be given be the transferee to the tenant of such transfer by registered post (acknowledgement due)". If a document is sent by registered post and it brings the transfer to the notice of the tenant the law is sufficiently complied with although section 30 is no mentioned. It is not the requirement of law that section 3 should be mentioned in the notice.
Let me further point out that in the last notice of ejectment on the basis of which the application for ejectment was filed all the relevant facts are stated seriatim. This notice too had been sent by registered post and although it calls upon the appellant to vacate the premises it does mention the fact that the property has been transferred to the respondent. Even this notice could, if need be, serve as compliance with section 30.
Coming to the question of technical compliance let me just explain the difficulties which an insistence on such compliance will produce. Suppose the tenant is out of the country, the house being occupied by some licensee and the transferee of the house is unable to find his address in spite of due diligence. Or the tenant is a travelling agent who only on few occasions comes back to his own house. Even in a case where the tenant is living in the house a registered notice can be avoided very easily by the addressee simply failing to remain at his residence at the time when the postal peon comes to the house for service. It is to be remembered that the postal peon comes at fixed times and his only duty is to present the document if the addressee is there. He is not a process server of a Court who is to take all steps to find out the person who is to be served. The duty of a postal peon finishes if he finds that the addressee is not in the house. The house may be closed or the inmates may give him no information or may give him incorrect information. The tenant may die and may have a large number of heirs residing at distant places whose addresses it may be almost impossible to find. What then is to happen in such cases The law cannot intend to punish a person for no fault of his nor can the law expect a person to perform that which is impossible or not practicable. If the transferee cannot in spite of his best efforts serve a registered notice it does not mean that the period of six years should not begin. It is to be observed that the period of six years starts from "receipt of notice." If the provision was that the sending of a registered notice at an address which became reasonably certain in view of a legal provision was sufficient compliance with the law I could understand that there was no difficulty created in technical compliance and time could start when a registered notice was sent whether it was actually delivered or not. But here the words used are "the receipt of notice" and it appears to me that this may be impossible of compliance.
I have just indicated an obstacle in the way of an interpre tation insisting on technical compliance. I will not (sic) deal further with the matter for to my mind there can be difficulty in the requirement of registered notice being liable to be waived. Notice of transfer of course there has to be but cannot the precise method of giving notice be waived Could not the tenant who has received a written notice through ordinary post or through a private peon or some other method waive the right to get the notice through registered post The position is well recognised that any right or benefit conferred on a party can be waived for a person is entitled to do anything with what is his, but if the provision be based on public policy it cannot be waived. The question, therefore, to be determined in each K case would be whether the particular provision in dispute is based on public policy. When we say that a rule is based o public policy we mean it has been framed not for the benefit of the individual whom it actually benefits (or not for his benefit alone) but for the benefit of the public or the society. That the question as to whether a provision can be waived is to be deter mined on the basis of public good or public benefit or avoidance of injury to the public will be clear on a reference to commen taries and decided cases. In Craies on Statute Law after saying that all rights can be waived there is a proviso added which says
"But the conditions in an enabling Act which have been prescribed for the purpose of protecting or benefiting the public cannot be dispensed with."
In Halsbury Volume VII ,(2nd Edition p. 153), the rule as to agreements being void on ground of public policy is thus stated
Any agreement which tends to be injurious to the public or against the public good is void as being against public policy."
In Prem Parkash v. Mohan Lal (A I R 1943 Lah. 268) the question as to whether a prohibition of attachment that benefited a judgment‑debtor could be waived was thus stated by Abdur Rahman, J.
"This takes me to the question whether these prohibitions were really made for the benefit of the judgment‑debtor only or in the interest of the society at large i.e. on grounds of public policy."
Here it may be explained that in one sense all laws are framed for public good and though the laws confer rights on individuals the reason for the grant of such rights is that the public good is thereby advanced. What then is the difference between the two kinds of cases with which we are dealing The difference is this. The public good is in the first case (case where individual alone is benefited) sufficiently served by the simple conferment of the right on the individual without regard to how the individual deals with the right so that it is not affected by his failure to exercise or retain the right, while in the second case the public good is not sufficiently served by a simple conferment of the right on the individual: but needs also the exercise or retention of the right by the individual and public good suffers if the right be not exercised or be parted with.
The criterion for determining whether a provision can be waived will be whether the failure to exercise the right conferred by the provision is detrimental to public interest. If it be so detrimental the provision relates to public policy and cannot be waived, while if it be not so detrimental no question of public policy arises.
To take an example the Punjab Alienation of Land Act prohibited sale of land by an agriculturist to a non‑agriculturist. This was not a provision for the benefit of the particular agri culturist who wanted to sell his land. If he was allowed to alienate land to a non‑agriculturist then the public interest would suffer because on the view that the Government took the passing of land from the agriculturists to the non‑agriculturists was injurious to the public interest. Similarly the provision in section 60 of the Civil Procedure Code which prevents the attachment of the salary of a public servant except to a certain extent was held to be a matter of public policy because if the public servant was allowed to enter into an agreement to have a larger portion of his salary attached than was permitted by law the efficiency of the Government Departments would suffer. Examples need not be multiplied. One may be sure that if the waiver does not injure the public interest it cannot be urged that on grounds of public policy there is an objection to waiver. Of course we are to consider whether the Legislature regards a particular violation of law as opposed to public interest and has enacted a law with a view to the protection of that interest.
The main reason for brother Hamoodur Rahman holding that this 'provision is based on public policy is that it was intended for the protection of non‑claimant displaced persons against whom the claimant displaced persons had a preferential right of acquiring the property and the intention was "not to leave the non‑claimants at the mercy of the transferee or to give them no protection even for a reasonable time during which they may find alternative accommodation". A little considera tion would reveal that very few displaced persons could have received benefit from section 30. If a displaced person was in possession of a house as allottee he was entitled under the Schedule to the transfer of the house whether he was a claimant or a non‑claimant. The house being in his possession could not be given to another. In accordance with the definition of "house" in the Displaced Persons Act as it originally stood any part of a house separately allotted was a "house". Section 30 was substantially the same in the original Act as it is now and therefore the question whether any provision is it is based on public policy has to be decided with reference to the original Act. On 5‑1‑1959 the Act was amended and section 30 was put in the form in which it now is (except that the period was three years) but still the definition of house remained unchanged and even till then the section could have had little effect on displaced persons who were in occupation of evacuee house. It may be explained here that if an evacuee was in possession of a house not as allottee but as trespasser section 30 gave him no protection for the section was inapplicable to trespassers inasmuch as it said that after the transfer of the house the person in possession would be a tenant "on the same terms and conditions on which he held it immediately before transfer". He must have "held" the house and there must have been "terms and conditions" on which he held it. A trespasser would remain a trespasser. Also, if the house was in possession of the displaced person it could not go to another for possession was an essential condition of the right to a transfer. Long after the first amendment of the Act the Government extended the definition of "possession" so as to entitle even an unauthorised displaced person to a transfer, but that would not mean he "held on terms and conditions" and in any case would not affect the interpretation of the section as to whether it was originally intended for benefit of refugees. It is only when the Displaced Persons Act was further amended on 28th September 1959, by Ordinance LIII of 1959 that the definition was altered and it became possible for two allottees to be occupying parts of the same house. Then a possibility arose of a house in the possession of one displaced person being transferred to another and that too only in case the house was found to be indivisible. To this extent the displaced persons could also henceforth be affected but the subsequent amendment is not relevant for determining the intention of the original Act.
I would not therefore accept that the main reason for granting a period to the persons in possession was the benefit of displaced persons. But even if it were so it would not for more than one reason conclude the matter. I have already made it clear that the question under consideration is whether the particular mode of service of notice can be waived that is whether the tenant can agree to a notice which is not sent to him by registered post, but by some other method referred to above. If the tenant accepts a notice which has come to him L by ordinary post or through a peon and sends a letter to the transferee that he does not stand in need of a registered notice, what public interest will suffer by the waiver What is the difference to the public if the tenant accepts a notice through ordinary post instead of through registered post The actual difference in the two methods of service is that in the first case there is no record in the post office of the notice and in the second there is such a record. There is no particular benefit to society or the public by the fact that record was kept. Brother Hamoodur Rahman has not dealt with the question as to whether the particular provision relating to registration is based on public policy and has dealt generally with the question as to whether the grant of a period of six years to the occupants of evacuee houses was based on public policy and holding that this was so has assumed every provision in section 30 to be a matter of public policy. Whether the grant of a period of six years was a matter of public policy which could not be waived is matter quite distinct from the question whether the particular method of service can be waived. But even the grant of period of six years to a class of persons neither necessarily means that they are not entitled to waive this benefit nor does it mean n that the intention was to provide occasions for raising technical objections by which this period may be increased. If the tenant was entitled to occupy for six years could he not on payment of consideration transfer this right I do not think he was debarred from doing so. There is nothing in the Act which indicates such an intention. In fact it may have been much more for the benefit of an occupant in a particular case to be his right of residence to another. It should be remembered that a rule of public policy does not confer additional benefit upon the person to whom it relates for it creates a disability and prevents him from dealing with the right which he holds, because such dealing though of benefit to him personally will injure the public interest. When there is no rule of public policy involved a person is entitled to deal with the right which he has in any way he likes. He is the full owner of the right. On the other hand when a rule of public policy is brought in there is an obstacle to his parting with the right whether for consideration or otherwise and when we say he cannot waive it because of public policy it is necessarily implied that he cannot transfer it or abandon it for value. The Punjab Alienation of Land Act prohibiting transfer from agriculturists to non‑agricul turists adversely affected the agriculturist by preventing him from selling the land for consideration to a non‑agriculturist. It appears to me that the conferment of a right of residence for six years on the occupants of evacuee houses falls within the first of the two classes which I have indicated above that is, where the public good is sufficiently satisfied by a conferment of a right without being concerned with the exercise or retention of the right. There was a demand that those who had felt secure as allottees or tenants of evacuee houses because the Custodian would not take any unreasonable action should not be left at the mercy of the individual transferees. To protect the occupants against action by the transferees it was regarded proper to provide that they will be entitled to remain in possession for six years. But the intention being to grant them protection it was sufficient that the right of residence was granted to them. What they do with the right is their own business and the cannot possibly have any cause for complaint if they are allowed to do with the right as they please. I do not think therefor that residence for six years was intended as a matter of public policy which could not be waived. I may add here that the mere fact that a provision is for the benefit of a class of persons does not mean that it could not be waived. On the other hand commentaries on the interpretation of statutes all go on saying that if the provision is intended for "the benefit of an individual or class of individual" it can be waived. I may explain that so far as the enhancement of rent is concerned that is a different matter which has to be considered in the light of the various Rent Restriction Acts which have been passed. The Rent Restriction Acts would have been rendered useless if rent was allowed to be enhanced. The allottee was granted by section 30 P the right of a tenant and the same considerations which would apply to a tenant apply to him.
But even if the grant of aright of residence for a period of six years had been based on public policy, it would not imply that the method of service of notice was based on public policy and could not be waived. That has to be decided with reference to whether the waiver will injure the public interest. The mere fact that one provision in a section was a matter of public policy does not mean that every thing in that section and particularly matters relating to procedure become matters of public policy.
A number of cases could be cited where notices and other requisite procedure though mandatory in form were allowed to be waived. I will just cite one case which may serve as an illustration. Section 80, C. P. C. runs
80. No suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been delivered . . . . . .
These are very strong words. "No suit shall be instituted" without a notice. The party protected is the Government and there is a possible argument that the provision was based on public policy because public interest may suffer if there is not a proper opportunity to the Government to consider its position in respect of a claim made by some person. Yet the Privy Council felt no difficulty in holding in Vellayan Chettiar v. Madras Province (P LD1947 PC 160 = A I R 1947 PC 197) that the provision could be waived, though it found the provision to be mandatory. As to the provision being mandatory it was said: "There is no inconsistency between the proposition that the provisions of the section are mandatory and must be enforced by the Court and that they may be waived by the authority for whose benefit they are provided". As to the reason for waiver it was said. "On the other hand there appears to their Lordships to be no reason why the notice required to be given under section 80 should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required if in the particular case he does not require that protection and says so he can lawfully waive his right.
I may also state what will be the result of disallowing waiver. The allottee or the tenant accepts an unregistered notice by hand and states that he does not need a registered notice. He goes on paying the rent. A part of the house falls and he calls upon the transferee to repair it which the transferee does at a sub stantial cost. The tenant then applies for fixation of fair rent to the Controller and gets the rent reduced (the transferee having raised no objection as to jurisdiction). At the end of six years the tenant turns round and says that he has not yet received a registered notice and the period of six years would commence only when he receives it. I do not think this result was contemplated.
A.H. Appeal allowed.
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